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QUESTIONS OF FACT ABOUT WHETHER THE INSURER WAS TIMELY NOTIFIED OF THE ASBESTOS-EXPOSURE CLAIM AND WHEN THE INJURY-IN-FACT OCCURRED PRECLUDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there are questions of fact whether the defendant insurer was timely notified of the claim in this asbestos-exposure case, and there are questions of fact, raised by conflicting expert evidence, about when the injury-in-fact occurred:

Defendant contends that the Meissners’ [plaintiffs’] delay of 68 days—from when they were first informed that Ridge Construction [defendant] had excess insurance policies issued by defendant to the date that the Meissners’ counsel wrote to provide defendant notice of the claim—was unreasonable as a matter of law. In response, plaintiff asserts that the delay was reasonable because the Meissners were not aware for the first 63 of those days that Ridge Construction had failed to provide defendant with notice. “The reasonableness of the delay in giving notice is ordinarily a question for the fact-finder” … .

* * * The parties … “dispute when an asbestos-related injury actually begins: plaintiff[ ] assert[s] that injury-in-fact occurs upon first exposure to asbestos, while defendant denies that assertion and instead maintains that injury-in-fact occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body’s defense mechanisms” … . Inasmuch as the parties here submitted conflicting expert opinions as to when the injury-in-fact occurs in an asbestos-related injury, summary judgment on that basis was not proper … . Meissner v Ridge Constr. Corp., 2024 NY Slip Op 01445, Fourth Dept 3-15-24

Practice Point: Whether the insurer was timely notified of the asbestos-exposure claim is a question of fact which should not have been determined as a matter of law at the summary judgment stage.

Practice Point: Here conflicting expert evidence was presented about when the injury-in-fact occurs in an asbestos-exposure case. The issue should not have been determined as a matter of law at the summary judgment stage.

 

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