Majority
p. 913Melvin Feigelson, Appellant, v. Allstate Insurance Company, Respondent. Argued December 5, 1972; decided December 29, 1972.
p. 915
Sol Lefkowits for appellant.
Merman J. McCarthy for respondent.
Order affirmed, with costs, in the following memorandum: In this action, brought pursuant to section 167 of the Insurance Law (subd. 7, par. [a]), the record establishes that the plaintiff failed to give the defendant Allstate “ written notice ” of the accident or of the suit against its insured “ within a reasonable time under all the circumstances ”. (See Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127 ,129; Insurance Law, § 167, subd. 1, pars.
p. 916
[c], [d].) It follows, therefore, that the plaintiff is precluded from recovering against the insurer upon the policy. Since he did not in the trial court seek to establish the claim that the defendant had “ waived ” the notice requirements of the policy or was “estopped” from asserting the defense of untimely notice (Insurance Law, § 167, subd. 8; see Appell v. Liberty Mut. Ins. Co., 17 N Y 2d 519 , affg. 22 A D 2d 906 ), he may not do so for the first time in the Court of Appeals. (See Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127 ,131, supra; see, also, Farr v. Newman, 14 N Y 2d 183 ,188; Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N. Y. 342 , 349.)
Concur: Chief Judge Ftjld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson.
Cases cited
- Deso v. London & Lancashire Indemnity Co. of America 3 N Y 2d 127 at 129, at 131 p. 915, p. 916
- Appell v. Liberty Mutual Insurance 17 N Y 2d 519 p. 916
- Appell v. Liberty Mutual Insurance 22 A D 2d 906 p. 916
- Farr v. Newman 14 N Y 2d 183 at 188 p. 916
- Rentways, Inc. v. O'Neill Milk & Cream Co. 308 N. Y. 342 at 349 p. 916