Majority
p. 668Bauerschmidt & Sons, Inc., Respondent, v Nova Casualty Company, Appellant. [893 NYS2d 181]
p. 669
Where, as here, a policy of liability insurance requires that notice of an occurrence be given “as soon as practicable,” such notice must be accorded to the carrier within a reasonable period of time (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 , 743 [2005]; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436 , 441 [1972]). However, there may be circumstances where the insured’s failure to give timely notice is excusable, such as where the insured has a good-faith belief in nonliability (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 441 ). The insured bears the burden of establishing the reasonableness of the proffered excuse (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d at 744 ). “Ordinarily, the question of whether the insured had a good faith belief in nonliability, and whether that belief was reasonable, presents an issue of fact and not one of law” (St. James Mech., Inc. v Royal & Sunalliance, 44 AD3d 1030 , 1031 [2007]; see Hermitage Ins. Co. v Arm-ing, Inc., 46 AD3d 620 , 621 [2007]; Hudson City School Dist. v Utica Mut. Ins. Co., 241 AD2d 641 , 642 [1997]; Kim v Maher, 226 AD2d 350 [1996]; G.L.G. Contr. Corp. v Aetna Cas. & Sur. Co., 215 AD2d 821 , 822-823 [1995]).
Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law based on the plaintiffs approximately four-month delay in notifying the defendant of the underlying incident (see Avery & Avery, P.C. v American Ins. Co., 51 AD3d 695 , 697-698 [2008]). In opposition, the plaintiff raised a triable issue of fact as to whether the delay was reasonably based on a good-faith belief of nonliability (see St. James Mech., Inc. v Royal & Sunalliance, 44 AD3d at 1031 ). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. Rivera, J.P., Leventhal, Belen and Austin, JJ., concur.
Cases cited
- Security Mutual Insurance v. Acker-Fitzsimons Corp. 31 NY2d 436 at 441 p. 669
- St. James Mechanical, Inc. v. Royal & Sunalliance 44 AD3d 1030 at 1031 p. 669
- Hermitage Insurance v. Arm-ing, Inc. 46 AD3d 620 at 621 p. 669
- Hudson City School District v. Utica Mutual Insurance 241 AD2d 641 at 642 p. 669
- Kim v. Maher 226 AD2d 350 p. 669
- G.L.G. Contracting Corp. v. Aetna Casualty & Surety Co. 215 AD2d 821 at 822-823 p. 669