IN RE: PROGRESSIVE NORTHEASTERN INSURANCE COMPANY

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

IN RE: PROGRESSIVE NORTHEASTERN INSURANCE COMPANY, appellant, v. Charles McBRIDE, respondent, et al., additional respondents.

Decided: August 18, 2009

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, ANITA R. FLORIO, and PLUMMER E. LOTT, JJ. Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Michael A. Zarkower of counsel), for appellant. Joseph B. Fruchter, Hauppauge, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of an underinsured motorist claim, the petitioner appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County (Rios, J.), dated May 20, 2008, as denied that branch of the petition which was to permanently stay the arbitration.

ORDERED that the judgment is affirmed, with costs.

 In the context of supplemental uninsured/underinsured motorist (hereinafter SUM) claims, it is the claimant's burden to prove timeliness of notice, which is measured by the date the claimant knew or should have known that the tortfeasor was underinsured (see Matter of Metropolitan Prop. & Cas. Ins. Co. v. Mancuso, 93 N.Y.2d 487, 495, 693 N.Y.S.2d 81, 715 N.E.2d 107;  Matter of Assurance Co. of Am. v. Delgrosso, 38 A.D.3d 649, 831 N.Y.S.2d 545;  Matter of State Farm Mut. Auto. Ins. Co. v. Linero, 13 A.D.3d 546, 786 N.Y.S.2d 580;  Matter of Continental Ins. Co. v. Marshall, 12 A.D.3d 508, 784 N.Y.S.2d 608;  State Farm Mut. Auto. Ins. Co. v. Sparacio, 297 A.D.2d 284, 285, 746 N.Y.S.2d 167).   Timeliness of notice is an elastic concept, the resolution of which is highly dependent on the particular circumstances (see Matter of Metropolitan Property & Cas. Ins. Co. v. Mancuso, 93 N.Y.2d at 494-495, 693 N.Y.S.2d 81, 715 N.E.2d 107;  Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 19, 416 N.Y.S.2d 559, 389 N.E.2d 1080;  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;  Morris Park Contr. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 33 A.D.3d 763, 764-765, 822 N.Y.S.2d 616).   In determining whether notice was timely, factors to consider include, inter alia, whether the claimant has offered a reasonable excuse for any delay, such as latency of his/her injuries, and evidence of the claimant's due diligence in attempting to establish the insurance status of the other vehicles involved in the accident (see Matter of Metropolitan Property & Cas. Ins. Co. v. Mancuso, 93 N.Y.2d at 492-493, 693 N.Y.S.2d 81, 715 N.E.2d 107;  Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d at 19-20, 416 N.Y.S.2d 559, 389 N.E.2d 1080;  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;  Matter of Blue Ridge Ins. Co. v. Cook, 301 A.D.2d 598, 599, 754 N.Y.S.2d 41;  Matter of Allstate Ins. Co. [White ], 231 A.D.2d 950, 647 N.Y.S.2d 640;  cf. Matter of Nationwide Mut. Ins. Co. v. Wexler, 276 A.D.2d 490, 491, 713 N.Y.S.2d 878).

 Here, the respondent Charles McBride established a reasonable excuse for his nearly one-year delay in notifying his insurer, the petitioner, Progressive Northeastern Insurance Company (hereinafter Progressive).   McBride submitted evidence that his counsel sent several written requests to the insurers of the vehicle which struck the taxicab in which he had been a passenger at the time of the accident, and to the insurers of the taxicab, and that in the ensuing 12 months those insurers ignored his requests and/or provided erroneous information on the SUM limits of their respective policies (see Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d at 20-21, 416 N.Y.S.2d 559, 389 N.E.2d 1080;  Matter of Allstate Ins. Co. [White ], 231 A.D.2d 950, 647 N.Y.S.2d 640;  cf. Matter of Travelers Ins. Co. v. Cohen, 61 A.D.3d 768, 877 N.Y.S.2d 189;  Matter of Continental Ins. Co. v. Marshall, 12 A.D.3d 508, 784 N.Y.S.2d 608;  Matter of State Farm Mut. Auto. Ins. Co. v. Bennett, 289 A.D.2d 496, 734 N.Y.S.2d 637;  Matter of Interboro Mut. Indem. Ins. Co. v. Sarno, 277 A.D.2d 454, 716 N.Y.S.2d 707;  Matter of American Cas. Ins. Co. v. Silverman, 271 A.D.2d 528, 705 N.Y.S.2d 676;  Matter of Nationwide Ins. Co. v. Montopoli, 262 A.D.2d 647, 692 N.Y.S.2d 459).   Accordingly, we affirm so much of the judgment as denied that branch of the petition which was to permanently stay the arbitration.

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