Opinion
Argued December 5, 1972
Decided December 29, 1972
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ALFRED M. ASCIONE, J.
Sol Lefkowitz for appellant.
Herman J. McCarthy for respondent.
Order affirmed, with costs, in the following memorandum: In this action, brought pursuant to section 167 of the Insurance Law (subd. 7, par. [a]), the record establishes that the plaintiff failed to give the defendant Allstate "written notice" of the accident or of the suit against its insured "within a reasonable time under all the circumstances". (See Deso v. London Lancashire Ind. Co., 3 N.Y.2d 127, 129; Insurance Law, § 167, subd. 1, pars. [c], [d].) It follows, therefore, that the plaintiff is precluded from recovering against the insurer upon the policy. Since he did not in the trial court seek to establish the claim that the defendant had "waived" the notice requirements of the policy or was "estopped" from asserting the defense of untimely notice (Insurance Law, § 167, subd. 8; see Appell v. Liberty Mut. Ins. Co., 17 N.Y.2d 519, affg. 22 A.D.2d 906), he may not do so for the first time in the Court of Appeals. (See Deso v. London Lancashire Ind. Co., 3 N.Y.2d 127, 131, supra; see, also, Farr v. Newman, 14 N.Y.2d 183, 188; Rentways, Inc. v. O'Neill Milk Cream Co., 308 N.Y. 342, 349.)
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.