Summary
In Children's Hospital of Buffalo v. Employers Ins. Co., 84 A.D.2d 933, 466 N.Y.S.2d 695 (4th Dept. 1981), the court determined that even though the insured notified first, and late, that it did not bar the plaintiff's rights under Insurance Law § 3420.
Summary of this case from Grazette v. United National Insurance Co.Opinion
November 13, 1981
Appeal from the Erie Supreme Court, J.B. Kane, J.
Present — Dillon, P.J., Simons, Doerr, Moule and Schnepp, JJ.
Order unanimously affirmed, without costs. Memorandum: Plaintiff and codefendant Ruefli appeal from the dismissal of Ruefli's motion for summary judgment in a declaratory judgment action against plaintiff's insurance company, Employers Reinsurance (Employers). The issues on this appeal involve the timeliness of Employers' disclaimer and the rights of the injured party (Ruefli) against the insurance company. The motion for summary judgment was properly denied because issues of fact were presented which could not be resolved summarily. Whether Employers' delay of three months in disclaiming coverage was untimely constitutes a question of fact to be determined in relation to the circumstances of the case (see Allstate Ins. Co. v. Gross, 27 N.Y.2d 263; Aetna Cas. Sur. Co. v. Brice, 72 A.D.2d 927, affd 50 N.Y.2d 958). It is only the exceptional case wherein this issue can be resolved as a matter of law (Aetna Cas. Sur. Co. v. Brice, supra). Further, Ruefli is correct in asserting that he has an independent right against Employers and cannot be bound by plaintiff's late notice to Employers (see General Acc. Ins. Group v. Cirucci, 46 N.Y.2d 862; Metropolitan Prop. Liab. Ins. Co. v. Horner, 79 A.D.2d 869; Lauritano v. American Fid. Fire Ins. Co., 3 A.D.2d 564, affd 4 N.Y.2d 1028). However, this notice to Employers must also be "as soon as [is] reasonably possible" under the circumstances (Lauritano v. American Fid. Fire Ins. Co., supra, p 569; Zurich Ins. Co. v. Martinez, 24 Misc.2d 437, affd 14 A.D.2d 754). The injured party's notice to the insurance company is measured less rigidly, but must nonetheless be reasonable under the circumstances (Marcus v. London Lancashire Ind. Co. of Amer., 6 A.D.2d 702, affd 5 N.Y.2d 961; Lauritano v American Fid. Fire Ins. Co., supra; Zurich Ins. Co. v. Martinez, supra). The reasonableness of Ruefli's notice to Employers was, therefore, a question of fact and the summary judgment motion was properly denied.