Opinion
December 29, 1992
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
Unrefuted documentary evidence establishes that plaintiff injured parties' notice of the accident to defendant insurer preceded that of counterclaim defendant insureds, and thus we find it unnecessary to decide whether, as defendant argues, citing Massachusetts Bay Ins. Co. v Flood ( 128 A.D.2d 683, lv denied 70 N.Y.2d 612; but cf., Walters v Atkins, 179 A.D.2d 1067 ), plaintiff's notice would be superfluous if not first in time. Since defendant's denial of liability was based solely on its insureds' failure to give it written notice of claim, it could no longer deny liability on the basis of plaintiffs' ostensible failure to give timely notice (General Acc. Ins. Group v Cirucci, 46 N.Y.2d 862; Matter of Aetna Cas. Sur. Co. v Rodriguez, 115 A.D.2d 418 [Ellerin, J., concurring]).
Plaintiffs are therefore entitled to summary judgment as against defendant in the amount of the policy with interest on the full amount of the unsatisfied default judgment entered against defendant's insureds, from the date of its entry, June 17, 1988, as specifically provided in the policy (Rodriguez v Rodriguez, 93 A.D.2d 748). We have reviewed defendant's remaining claims and find them to be without merit.
Concur — Sullivan, J.P., Wallach, Ross and Asch, JJ.