DANIEL D. ANGIOLILLO

Dupée & Monroe, P.C., Goshen, N.Y. (James E. Monroe of counsel), for appellants. Hiscock & Barclay, LLP, Rochester, N.Y. (William C. Foster and Joseph A. Wilson of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

In an action for a judgment declaring that the defendant Travelers Insurance Company is obligated to defend and indemnify the plaintiffs in an underlying actionentitled Torres v. Wal–Mart, pending in the Supreme Court, Orange County, under Index No. 1299/2009, the plaintiffs appeal from an order of the Supreme Court, Orange County (Bartlett, J.), dated June 2, 2011, which granted the motion of the defendant Travelers Insurance Company, in effect, for summary judgment declaring that the defendant Travelers Insurance Company is not obligated to defend and indemnify them in the underlying action, and denied their cross motion for summary judgment declaring that the defendant Travelers Insurance Company is so obligated. Justice Lott has been substituted for former Justice Belen ( see22 NYCRR 670.1[c] ).

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant TravelersInsurance Company, in effect, for summary judgment declaring that the defendant Travelers Insurance Company is not obligated to defend and indemnify the plaintiffs in the underlying action, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, without costs or disbursements.

On August 14, 2008, the infant plaintiff, while riding a bicycle inside a Wal–Mart store, allegedly struck and injured the defendant Ines Torres. Approximately six months later, on February 21, 2009, the infant plaintiff and his mother, the plaintiff Rita Albano–Plotkin (hereinafter the mother), were served with a summons and complaint in an action (hereinafter the underlying action) commenced by the defendants Ines and Phillip Torres (hereinafter the Torreses). According to the mother, she subsequently consulted with an attorney and was surprised to learn that her homeowner's insurance policy might provide coverage for accidents occurring off the insured premises. The next day, the plaintiffs' attorney mailed a letter to the defendant Travelers Insurance Company (hereinafter Travelers), which had issued the homeowner's policy, notifying it of the accident.

After Travelers disclaimed coverage on the ground of late notice, the plaintiffs commenced this action against Travelers and the Torreses for a judgment declaring that Travelers is obligated to defend and indemnify them in the underlying action. Travelers moved for summary judgment, in effect, declaring that it was not obligated to defend and indemnify the plaintiffs in the underlying action, and the plaintiffs cross-moved for summary judgment declaring that it was so obligated, contending that their delay in notifying Travelers was excused by their justifiable ignorance of available coverage for the off-premises accident. The Supreme Court granted Travelers' motion and denied the plaintiffs' cross motion. The plaintiffs appeal.

“[T]he providing of timely notice to an insurer is a condition precedent to recovery and, absent a valid excuse, the failure to satisfy the notice requirement vitiates the policy” ( Nationwide Ins. Co. v. Empire Ins. Group, 294 A.D.2d 546, 548, 742 N.Y.S.2d 387 [citation omitted]; see McGovern–Barbash Assoc., LLC v. Everest Natl. Ins. Co., 79 A.D.3d 981, 983, 914 N.Y.S.2d 218). To establish a valid excuse due to the insured's alleged ignorance of insurance coverage, the insured has the burden of proving “a justifiable lack of knowledge of insurance coverage” and “reasonably diligent efforts to ascertain whether coverage existed” upon receiving information “which would have prompted any person of ordinary prudence to consult either an attorney or an insurance broker”( Winstead v. Uniondale Union Free School Dist., 201 A.D.2d 721, 723, 608 N.Y.S.2d 487;see Sitnick v. Travelers Ins. Co., 82 A.D.3d 573, 573, 918 N.Y.S.2d 489; Seemann v. Sterling Ins. Co., 267 A.D.2d 677, 678, 699 N.Y.S.2d 542;Padavan v. Clemente, 43 A.D.2d 729, 729–730, 350 N.Y.S.2d 694). The sufficiency of an excuse ordinarily presents a question of fact to be determined at trial ( see Travelers Ins. Co. v. Volmar Constr. Co., 300 A.D.2d 40, 42–43, 752 N.Y.S.2d 286;Winstead v. Uniondale Union Free School Dist., 170 A.D.2d 500, 503, 565 N.Y.S.2d 845), and may be decided as a matter of law “only when the facts are undisputed and not subject to conflicting inferences” ( St. James Mech., Inc. v. Royal & Sunalliance, 44 A.D.3d 1030, 1031, 845 N.Y.S.2d 83;see Greenwich Bank v. Hartford Fire Ins. Co., 250 N.Y. 116, 131, 164 N.E. 876;Preferred Mut. Ins. Co. v. New York Fire–Shield, Inc., 63 A.D.3d 1249, 1251, 880 N.Y.S.2d 744).

Here, Travelers established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs had knowledge of the accident but failed to notify it of the occurrence until approximately seven months thereafter ( see McGovern–Barbash Assoc., LLC v. Everest Natl. Ins. Co., 79 A.D.3d at 983, 914 N.Y.S.2d 218). In opposition, the plaintiffs raised a triable issue of fact as to the existence of a reasonable excuse for the delay in notification with evidence that they were unaware that the subject homeowner's policy, in addition to providing coverage for incidents which occurred in the family home, also provided coverage for this incident which occurred in a Wal–Mart store, and that, upon receiving the summons in the underlying action, they retained counsel who notified Travelers of the claim ( see Sitnick v. Travelers Ins. Co., 82 A.D.3d at 573, 918 N.Y.S.2d 489;Seemann v. Sterling Ins. Co., 234 A.D.2d 672, 673, 650 N.Y.S.2d 873). Accordingly, the Supreme Court should have denied Traveler's motion for summary judgment.

However, the Supreme Court properly denied the plaintiffs' cross motion for summary judgment. In support of the cross motion, the plaintiffs submitted evidence, inter alia, that they had received and were aware of the policy declarations page, which stated that the subject homeowner's policy provided “personal liability” coverage for “bodily injury” and “medical payments to others,” without expressly limiting that coverage to occurrences at the subject home. Thus, the plaintiffs failed to eliminate a triable issue as to whether their ignorance of coverage was justifiable ( see Winstead v. Uniondale Union Free School Dist., 201 A.D.2d at 723, 608 N.Y.S.2d 487;cf. Sitnick v. Travelers Ins. Co., 82 A.D.3d at 573, 918 N.Y.S.2d 489;Seemann v. Sterling Ins. Co., 267 A.D.2d at 678, 699 N.Y.S.2d 542). Since the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law, their cross motion for summary judgment declaring that Travelers is obligated to defend and indemnify them in the underlying action was properly denied, without regard to the sufficiency of Travelers' papers in opposition ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).