IN RE: NATIONWIDE INSURANCE COMPANY

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

IN RE: NATIONWIDE INSURANCE COMPANY, respondent, v. William MONTOPOLI, appellant.

Decided: June 28, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and HOWARD MILLER, JJ. James J. Killerlane, White Plains, N.Y., for appellant. Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Robert J. Walker and Michael J. Balamoti of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to stay the arbitration of a claim for underinsured motorist benefits, the appeal is from an order of the Supreme Court, Nassau County (Carter, J.), dated August 4, 1998, which granted the application.

ORDERED that the order is affirmed, with costs.

 The relevant provision of the subject insurance policy required that the appellant, William Montopoli, give notice of the claim to the petitioner “within 90 days or as soon as practicable”.   The appellant was required to give notice within 90 days or as soon as practicable from the date he knew or should have known that the tortfeasor was underinsured (see, Matter of Metropolitan Property and Casualty Ins. Co. v. Mancuso, 93 N.Y.2d 487, 693 N.Y.S.2d 81, 715 N.E.2d 107;  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;  Matter of Nationwide Mut. Ins. Co. [Oglesby], 219 A.D.2d 771, 646 N.Y.S.2d 63;  Matter of Travelers Ins. Co. v. Littleton, 218 A.D.2d 661, 630 N.Y.S.2d 353).

 The appellant commenced an action against the tortfeasor nine months after the accident and made a demand for insurance information 11 months after the accident.   The appellant gave notice of a possible underinsurance claim one year and 10 months after the accident.   He was therefore obligated to demonstrate that he acted with due diligence in ascertaining the insurance status of the vehicle involved in the collision (see, Matter of Metropolitan Property and Casualty Ins. Co. v. Mancuso, supra;  State Farm Mut. Auto. Ins. Co. v. Adams, 259 A.D.2d 551, 686 N.Y.S.2d 438;  Matter of Nationwide Mut. Ins. Co. v. Edgerson, 195 A.D.2d 560, 561, 600 N.Y.S.2d 483;  Matter of State Farm Mut. Ins. Co. v. Pizzonia, 147 A.D.2d 703, 538 N.Y.S.2d 312).   On the record before us, the appellant has failed to sustain his burden of demonstrating due diligence or a reasonable excuse for the delay in ascertaining the tortfeasor's insurance status.   Therefore, notice of the claim was not given as soon as practicable (see, Matter of Metropolitan Property and Casualty Ins. Co. v. Mancuso, supra;  State Farm Mut. Auto. Ins. Co. v. Adams, supra;  Matter of Allstate Ins. Co. [Dewyea], 245 A.D.2d 667, 664 N.Y.S.2d 684;  Matter of Liberty Mut. Ins. Co. [Dombroski], 235 A.D.2d 606, 651 N.Y.S.2d 711;  Schiebel v. Nationwide Mut. Ins. Co., 166 A.D.2d 520, 560 N.Y.S.2d 801;  Matter of Merchants Mut. Ins. Co. v. Hurban, 160 A.D.2d 873, 554 N.Y.S.2d 307).

MEMORANDUM BY THE COURT.

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