Opinion
2003-02219.
Decided April 26, 2004.
In an action for a judgment declaring, inter alia, that the defendant Encompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey, is obligated to defend the defendant Mary Corso in an underlying action entitled Viggiano v. Corso, pending in the Supreme Court, Nassau County, under Index No. 004536/02, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Phelan, J.), dated February 10, 2003, which granted the motion of the defendant Encompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey, for summary judgment declaring that it is not so obligated.
Daniel P. Buttafuoco Associates, Woodbury, N.Y. (Ellen Buchholz of counsel), for appellants.
Feeney, Gayoso Fitzpatrick, LLP, Hauppauge, N.Y. (Rosa M. Feeney of counsel), for respondent Encompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant Encompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey, is not obligated to defend the defendant Mary Corso in the underlying action.
The requirement that an insured comply with the notice provision of an insurance policy operates as a condition precedent to coverage ( see White v. City of New York, 81 N.Y.2d 955, 957; Unigard Sec. Ins. Co. v. North Riv. Ins. Co., 79 N.Y.2d 576, 581; Security Mut. Ins. Co. Of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440; Genova v. Regal Mar. Indus., 309 A.D.2d 733). Absent a valid excuse, the failure to comply with the notice requirement vitiates the policy, and an insurer need not demonstrate prejudice before it can assert the defense of noncompliance ( see Security Mut. Ins. Co. Of N.Y. v. Acker-Fitzsimons Corp., supra at 440).
Here, the written disclaimer of coverage sent to the defendant insured, Mary Corso, for her failure to satisfy the notice requirement of the policy was effective against the plaintiffs since they did not exercise their right to provide independent notification of the claim pursuant to Insurance Law § 3420(a)(3) ( see Matter of First Cent Ins. Co., 3 A.D.3d 494; Travelers Indem. Co. v. Worthy, 281 A.D.2d 411; Agway Ins. v. Alvarez, 258 A.D.2d 487).
The defendant insurer, Encompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey (hereinafter Encompass), satisfied its prima facie entitlement to judgment as a matter of law, and the plaintiffs failed to raise a triable issue of fact as to whether Mary Corso's delay in providing notice of the claim was reasonable ( see generally Sayed v. Macari, 296 A.D.2d 396; Travelers Indem. Co. v. Worthy, supra). As such, Encompass was entitled to summary judgment.
The plaintiffs' remaining contention is without merit.
We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a judgment declaring that Encompass is not obligated to defend Mary Corso in the underlying action ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
ALTMAN, J.P., S. MILLER, KRAUSMAN and COZIER, JJ., concur.