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Feigelson v. Allstate Insurance

31 N.Y.2d 913 Court N.Y. Decision date 1972-12-29 English

Contents

Majority

p. 913
Melvin 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.

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