31 N.Y.2d 436, Security Mut. Ins. Co. of New York v. Acker-Fitzsimons Corp.

Citation:31 N.Y.2d 436, 340 N.Y.S.2d 902
Party Name:Security Mut. Ins. Co. of New York v. Acker-Fitzsimons Corp.
Case Date:December 29, 1972
Court:New York Court of Appeals

Page 436

31 N.Y.2d 436

340 N.Y.S.2d 902



ACKER-FITZSIMONS CORP. et al., Respondents, and Edward Yogert and ano., Defendants.

New York Court of Appeals

December 29, 1972.

Page 437

[340 N.Y.S.2d 904] William F. McNulty and Anthony J. McNulty, New York City, for appellant.

Page 438

Eugene A. Leiman and Norman S. Rein, New York City, for Norman Levy and Fernley Realty Corp., respondents.

Bernard Trencher and Andrew Perl, New York City, for Acker-Fitzsimons Corp., respondent.

Thomas F. McCarthy, New York City, for Richard Adams, Kenneth Harrington and John J. Manning, respondents.

Page 439

JASEN, Judge.

The issue on this appeal is whether the insured complied with a liability insurance policy provision requiring notice to the insurer 'as soon as practicable' after the 'occurrence'. 1

On November 29, 1964, Security Mutual Insurance Company of New York (Security Mutual) issued its Owner's, Landlords' and Tenants' Liability Policy to Fernley Realty Corp. (Fernley) insuring it against liability for personal injuries arising from the operation of certain premises located at 2--10 East 196 Street, Bronx, New York. In addition to the named insured, the policy covered Norman Levy, president of Fernley, and Acker-Fitzsimons Corp. (Acker-Fitzsimons), managing agents of the property.

On May 23, 1965, a major fire occurred on the insured premises and three days later the New York City Department of Buildings lodged certain structural violations against them. The buildings were again swept by fire on October 4, 1965, during the course of which three firemen, defendants Adams, Harrington and Manning, were allegedly injured. The buildings were subsequently demolished.

Levy evidently learned of the second fire (but not the personal injuries) on the afternoon of its occurrence. On November 9, 1965, he heard 'rumors' 2 that certain unnamed firemen had been injured in the October 4 fire. He then telephoned this information to James Kannar, Fernley's insurance broker, and followed up with a letter, also dated November 9, instructing him to notify the insurer of the claimed injuries. Kannar was of the view that until a more concrete claim was made, there was no obligation to report the incident to the [340 N.Y.S.2d 905] insurer.

Page 440

He also opined that since firemen go at their own risk, there was no liability anyway.

In ordinary course, the plaintiff issued a renewal policy for the premises. But on November 15, 1965, before the effective date of the renewal policy, Kannar wrote to Security Mutual advising it of the contemplated demolition of the premises. Telephone conversations followed on November 16 between Kannar and Theodore Moschitta, an employee of Security Mutual, during which Moschitta was advised of the fire of October 4, but no mention was made of any personal injuries. The policy was subsequently canceled on January 6, 1966.

On December 19, 1965, the Sunday News reported that two firemen (Adams and Manning) had filed a claim for $1,500,000 against the City of New York for injuries allegedly sustained in the fire of October 4. Mention was also made...

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