Zugnoniv.Travelers Insurance Companies

Appellate Division of the Supreme Court of New York, Fourth DepartmentJan 31, 1992
179 A.D.2d 1033 (N.Y. App. Div. 1992)
179 A.D.2d 1033579 N.Y.S.2d 296

January 31, 1992

Appeal from the Supreme Court, Monroe County, Siracuse, J.

Present — Denman, P.J., Pine, Balio, Lawton and Davis, JJ.

Judgment unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant summary judgment declaring that it had no duty to defend or to indemnify plaintiffs on the ground that plaintiffs gave late notice of the incident underlying the claim made against them. The delay in this case was 18 months, which, absent a reasonable excuse, would have been sufficient to vitiate the insurance contract (see, Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440; Deso v. London Lancashire Indem. Co., 3 N.Y.2d 127, 129; Eveready Ins. Co. v Levine, 145 A.D.2d 526, 527-528; Hartford Fire Ins. Co. v Masternak, 55 A.D.2d 472, 474). Where there are credible facts to support the offered excuse, however, the issue of reasonableness is an issue of fact that precludes summary judgment in favor of the insurer (see, Hartford Fire Ins. Co. v. Masternak, supra, at 474; see also, Deso v. London Lancashire Indem. Co., supra, at 129; Allstate Ins. Co. v. Moon, 89 A.D.2d 804, 805).

In this case, there were uncontroverted facts supporting plaintiffs' excuse that no notice was given because they did not anticipate that a claim would be covered under the policy. The incident underlying the claim was merely an altercation between students on a school bus, and plaintiffs had an understanding with the parents of the injured boy that they would not assert a claim. Those parties treated the incident as an intentional act for which there was no coverage under the policy. Indeed, the parents of the injured student asserted a claim only against the school district, which served plaintiffs with a third-party complaint. Upon receiving that third-party complaint, plaintiffs promptly gave notice to defendant. Thus, in the circumstances, it cannot be said that plaintiffs' failure to give timely notice to defendant was unreasonable as a matter of law (see, Hartford Fire Ins. Co. v. Masternak, supra; see also, Merchants Mut. Ins. Co. v. Hoffman, 86 A.D.2d 779, affd 56 N.Y.2d 799; Clute v. Harder Silo Co., 42 A.D.2d 818, 819; Insurance Co. v. Shore, 94 Misc.2d 451).