Opinion
December 13, 1960
Resettled order entered April 14, 1960, denying, among other things, the cross motion of the defendant Nationwide Insurance Company for summary judgment, unanimously modified to the extent of granting said defendant's cross motion for summary judgment, with $10 costs, and as so modified, the resettled order is affirmed, with $20 costs and disbursements to appellant Nationwide Insurance Company. Nationwide had issued an automobile liability policy to defendants Jayson — who operated a Summer camp — covering a pick-up truck. A camper was injured on July 7, 1957, apparently as she was climbing aboard the truck. Nationwide was not notified until April 19, 1958, when the Jaysons received a claim letter from the girl camper's attorneys, although the policy required the insured to give written notice of an accident or occurrence "as soon as practicable". Even assuming that the insureds were justified in supposing that the occurrence on July 7, 1957, was a trivial mishap, they were certainly alerted to the possibility of a claim being made when the camper's father telephoned Jayson in November or December, 1957 and informed Jayson that radioactive treatments were being administered to the injured person's leg. Any unreasonable delay in notifying the insurer from that point became inexcusable. The passage of four to five months from the receipt of such information to the time of notifying Nationwide constitutes late notice as a matter of law. Hence, there is no triable issue as to the reasonableness of the notice under the circumstances. The appeal from the order entered January 18, 1960, is dismissed, without costs, since that order was subsequently resettled by the order entered April 14, 1960. ( Matter of French v. Knapp, 170 App. Div. 959; Young v. White, 158 App. Div. 763.) Settle order on notice.
Concur — Valente, J.P., McNally, Stevens, Eager and Noonan, JJ.