1700 ASSOCIATES 77 v. PUBLIC SERVICE MUTUAL INSURANCE COMPANY (1998)

In an action, inter alia, for a judgment declaring that the defendant has a duty to defend and indemnify the plaintiff in an action entitled Bell v. 77 Realty Corp., pending in the Supreme Court, Kings County, under Index No. 166591/94, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Garson, J.), dated March 4, 1998, which denied its motion for summary judgment, granted the plaintiff's cross motion for summary judgment, and declared that the defendant has a duty to defend and indemnify the plaintiff in the action entitled Bell v. 77 Realty Corp.

ORDERED that the order and judgment is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and it is declared that the defendant has no duty to defend and indemnify the plaintiff in the action entitled Bell v. 77 Realty Corp.

The plaintiff had the burden of demonstrating a reasonable excuse for delaying more than six months in notifying the defendant of the accident which gave rise to the underlying personal injury action (see, Argentina v. Otsego Mut. Fire Ins. Co., 86 N.Y.2d 748, 631 N.Y.S.2d 125, 655 N.E.2d 166;  Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76).   Under the circumstances of this case, the plaintiff's belief that liability would not result was unreasonable as a matter of law (see, Vradenburg v. Prudential Prop. & Cas. Ins. Co., 212 A.D.2d 913, 622 N.Y.S.2d 623;  Herold v. East Coast Scaffolding, 208 A.D.2d 592, 617 N.Y.S.2d 197;  cf., D'Aloia v. Travelers Ins. Co., 85 N.Y.2d 825, 623 N.Y.S.2d 837, 647 N.E.2d 1345).

MEMORANDUM BY THE COURT.