IN RE: Luis DeLEON (1997)

In a proceeding, inter alia, pursuant to Insurance Law article 52 to determine the rights of the parties under certain insurance policies, Motor Vehicle Accident Indemnification Corporation appeals from a judgment of the Supreme Court, Queens County (Leviss, J.H.O.), dated August 22, 1996, which determined that Aetna Casualty and Surety Company is not obligated to defend or indemnify Minorka Paredes with respect to an accident which occurred on May 23, 1992.

ORDERED that the judgment is affirmed, with costs.

 The uncontroverted evidence established that the insured, Minorka Paredes, never notified Aetna Casualty and Surety Company (hereinafter Aetna) of the accident which occurred on May 23, 1992, or that the injured party, Luis DeLeon, had commenced a lawsuit against her.   Therefore, she failed to comply with the terms of the policy, which required her to promptly notify Aetna after the occurrence of the accident.   Contrary to the contention of Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC), Paredes's failure to comply with the notice provision vitiated the insurance contract, both as to Paredes as well as to DeLeon, and it was not necessary for Aetna to demonstrate prejudice as a result of the late notice (see, White v. City of New York, 81 N.Y.2d 955, 598 N.Y.S.2d 759, 615 N.E.2d 216;  Unigard Sec. Ins. Co. v. North Riv. Ins. Co., 79 N.Y.2d 576, 584 N.Y.S.2d 290, 594 N.E.2d 571).

 In addition, DeLeon's notice to Aetna, almost three years after the accident, was untimely as a matter of law (see, Eveready Ins. Co. v. Chavis, 150 A.D.2d 332, 540 N.Y.S.2d 860) and neither DeLeon nor MVAIC offered any evidence of mitigating circumstances at the hearing to explain or excuse the delay.   Consequently, the Supreme Court was correct in determining that Aetna was not required to defend or indemnify Paredes.

We decline to reach MVAIC's contention that it is not obligated to defend or indemnify Paredes on the ground that Aetna did not receive timely notice of the accident, as that contention is raised for the first time on appeal (see, Matter of Allstate Ins. Co. v. Bieder, 212 A.D.2d 693, 622 N.Y.S.2d 814).

MEMORANDUM BY THE COURT.