Summary
affirming grant of summary judgment and holding three-year delay in forwarding written notice was unreasonable as a matter of law
Summary of this case from Met-Coil Systems v. Columbia Cas. Co.Opinion
May 25, 1993
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
Appeal from the order of the same court and Justice entered on or about September 3, 1992 which denied plaintiff's motion for reargument, unanimously dismissed, as non-appealable.
Summary judgment was properly granted to defendant insurance company in this action to determine whether the defendant Zurich Insurance Company has an obligation to defend and indemnify plaintiff Structure Tone, Inc., in an underlying action for wrongful death and personal injury, because of plaintiff's failure to give timely notice. It is well settled that notice by the insured to the insurer must be given within the time limit provided for in the policy, or within a reasonable time under all the circumstances, and that failure to fulfill this condition precedent vitiates the insurer's obligations under the policy in the absence of a valid excuse (All-state Ins. Co. v Grant, 185 A.D.2d 911). Plaintiff's claim that it gave oral notice to an insurance broker is insufficient to raise a triable issue of fact in light of the written notice requirements under the policy (see, Elkowitz v Farm Family Mut. Ins. Co., 180 A.D.2d 711), as is plaintiff's claim that it did not receive a copy of the insurance policy under which it purportedly was insured, especially in the absence of a showing of due diligence to determine the extent of its purported coverage (see, Losi v Hanover Ins. Co., 139 A.D.2d 702, 704, appeal dismissed 72 N.Y.2d 950). Here, the three-year delay in forwarding written notice was unreasonable as a matter of law (see, Deso v London Lancashire Indem. Co., 3 N.Y.2d 127; Elkowitz v Farm Family Mut. Ins. Co., supra). No appeal lies from an order denying reargument (Charney v North Jersey Trading Corp., 184 A.D.2d 409).
Concur — Sullivan, J.P., Ross, Kassal and Nardelli, JJ.