US PACK NETWORK CORP v. Tanenbaum-Harber Co., Inc., et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

US PACK NETWORK CORP., et al., Plaintiffs-Appellants, v. TRAVELERS PROPERTY CASUALTY, Defendant-Respondent, Tanenbaum-Harber Co., Inc., et al., Defendants.

Decided: November 22, 2005

SAXE, J.P., MARLOW, ELLERIN, GONZALEZ, McGUIRE, JJ. Todd Brandon Eder, New York, for appellants. Budd Larner, New York (Michael J. Mernin of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered October 25, 2004, which, in an action by a courier to recover under a policy of commercial property insurance for loss of certain commercial documents, granted defendant-respondent insurer's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.

 The policy required that notice of any loss be “prompt,” and the undisputed record shows that the insurer did not receive written notice of plaintiffs' two losses until six and fifteen months after they occurred.   We reject plaintiffs' argument that the word “prompt” is ambiguous (see DiGuglielmo v. Travelers Prop. Cas., 6 A.D.3d 344, 345, 776 N.Y.S.2d 542 [2004], lv. denied 3 N.Y.3d 608, 786 N.Y.S.2d 811, 820 N.E.2d 290 [2004] ), and, absent any excuse or mitigating circumstances for the delays, find that the notices were not prompt as a matter of law (see id. at 346, 776 N.Y.S.2d 542;  Power Auth. v. Westinghouse Elec. Corp., 117 A.D.2d 336, 339-340, 502 N.Y.S.2d 420 [1986] ).   Plaintiffs offer no excuse or mitigating circumstances.   Instead, their president asserts that he “verbally notified” defendant broker, allegedly the insurer's agent, “shortly after each loss.”   This fails to raise a bona fide issue of fact as to whether there was prompt notice.   The phrase “shortly after” is for present purposes too vague to be a workable approximation of time, and no specifics are provided as to the identity of the person with whom plaintiffs' president spoke (see DiGuglielmo, 6 A.D.3d at 345, 776 N.Y.S.2d 542).   Nor can it avail plaintiffs to take the broker's deposition.   In answer to plaintiffs' interrogatories, the broker indicated that its first receipt of notice was virtually contemporaneous with the insurer's, and plaintiffs' president should know when he contacted the broker and to whom he spoke (see id.).