BAUERSCHMIDT SONS INC v. NOVA CASUALTY COMPANY (2010)

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Fiore v. Bauerschmidt & Sons, Inc., commenced in Supreme Court, Kings County, under Index No. 4645/08, the defendant appeals from an order of the Supreme Court, Queens County (James Golia, J.), dated June 30, 2009, which denied its motion for summary judgment.

ORDERED that the order is affirmed, with costs.

 Where, as here, a policy of liability insurance requires that notice of an occurrence be given “as soon as practicable,” such notice must be accorded to the carrier within a reasonable period of time (see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d 742, 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196;  Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 293 N.E.2d 76).   However, there may be circumstances where the insured's failure to give timely notice is excusable, such as where the insured has a good-faith belief in nonliability (see Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d at 441, 340 N.Y.S.2d 902, 293 N.E.2d 76).   The insured bears the burden of establishing the reasonableness of the proffered excuse (see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d at 744, 800 N.Y.S.2d 521, 833 N.E.2d 1196).  “Ordinarily, the question of whether the insured had a good faith belief in nonliability, and whether that belief was reasonable, presents an issue of fact and not one of law” (St. James Mech., Inc. v. Royal & Sunalliance, 44 A.D.3d 1030, 1031, 845 N.Y.S.2d 83;  see Hermitage Ins. Co. v. Arm-ing, Inc., 46 A.D.3d 620, 621, 847 N.Y.S.2d 628;  Hudson City School Dist. v. Utica Mut. Ins. Co., 241 A.D.2d 641, 642, 659 N.Y.S.2d 948;  Kim v. Maher, 226 A.D.2d 350, 640 N.Y.S.2d 579;  G.L.G. Contr. Corp. v. Aetna Cas. & Sur. Co., 215 A.D.2d 821, 822-823, 626 N.Y.S.2d 307).

 Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law based on the plaintiff's approximately four-month delay in notifying the defendant of the underlying incident (see Avery & Avery, P.C. v. American Ins. Co., 51 A.D.3d 695, 697-698, 858 N.Y.S.2d 319).   In opposition, the plaintiff raised a triable issue of fact as to whether the delay was reasonably based on a good-faith belief of nonliability (see St. James Mech., Inc. v. Royal & Sunalliance, 44 A.D.3d at 1031, 845 N.Y.S.2d 83).   Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment.