Opinion
Docket No. 02-7002.
Argued: August 5, 2002.
Question certified to the New York Court of Appeals: November 14, 2002. Dismissed and certification withdrawn: April 22, 2003. Errata Filed: April 28, 2003.
The parties having entered into a conditional settlement stipulation, the certified question to the New York Court of Appeals is WITHDRAWN and the appeal is DISMISSED.
MARK A. VARRICHIO (Rocco Ernesto Vozza, Vozza Vozza, Mount Kisco, N.Y. on the brief), for Plaintiffs-Appellants.
STEVEN A. COPLOFF, Steinberg Cavaliere, LLP, White Plains, N.Y., for Defendant-Appellee.
Before: LEVAL, CALABRESI, and POOLER, Circuit Judges.
On November 14, 2002, this court certified the following question to the New York Court of Appeals:
Where an insured has already complied with a policy's notice of claim requirement, does New York require the insurer to demonstrate prejudice in order to disclaim coverage based on the insured's failure to comply with the policy's notice of suit requirement?
Varrichio v. Chicago Ins. Co., 312 F.3d 544 (2d Cir. 2002). The New York Court of Appeals accepted the certified question on December 12, 2002. The parties subsequently notified this court that they had entered into a settlement agreement that is conditional on the dismissal of this appeal and have requested that we dismiss the appeal. The New York Court of Appeals has informed us that, under the circumstances, it has no objection to the appeal being dismissed and has asked us to withdraw the certification. Accordingly we WITHDRAW the certification to the New York Court of Appeals and DISMISS the appeal.