INSURED’S EXCUSES FOR DELAY IN NOTIFYING INSURANCE BROKERS OF PENDING ACTION NOT SUPPORTED BY SUFFICIENT EVIDENCE, SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BROKERS PROPERLY GRANTED.
The Second Department determined Supreme Court properly granted summary judgment in favor of the defendant-insurance-brokers who procured the policy on the plaintiff-insured's behalf. The insured did not notify the brokers of the action against the insured for 52 days. The excuses offered by the insured for the delay (complicated policy language, good-faith belief insured was not liable) were not supported by sufficient evidence:
Where an insurance policy requires an insured to provide notice ” as soon as practicable,' such notice must be accorded the carrier within a reasonable period of time. The insured's failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract” … . “[T]here may be circumstances that excuse a failure to give timely notice, such as where the insured has a good-faith belief of nonliability,' provided that belief is reasonable” … . It is the insured's burden to demonstrate the reasonableness of the excuse … . “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” … . “Nevertheless, the issue of whether an insured's excuse for the delay is reasonable may be determined as a matter of law where the evidence, construing all inferences in favor of the insured, establishes that the belief was unreasonable or in bad faith'” … . Rockland Exposition, Inc. v Marshall & Sterling Enters., Inc., 2016 NY Slip Op 03157, 2nd Dept 4-27-16