Mount Vernon Fire Ins. Co. v. Timm

• Decision Date: 31 March 1997
• Citation: 237 A.D.2d 586,655 N.Y.S.2d 611
• Parties: MOUNT VERNON FIRE INSURANCE COMPANY, Respondent, v. Levi TIMM, Defendant, Chadwick Lundy, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 611

655 N.Y.S.2d 611

237 A.D.2d 586

MOUNT VERNON FIRE INSURANCE COMPANY, Respondent, v. Levi TIMM, Defendant Chadwick Lundy, etc., et al., Appellants.

Supreme Court, Appellate Division Second Department.

March 31, 1997.

Ginsberg & Broome, P.C., New York City, (Robert M. Ginsberg and Alvin Broome, of counsel), for appellants.

Thurm & Heller, New York City, (Richard S. Sklarin and Michael A. Miranda, of counsel), for respondent.

Before O'BRIEN, J.P., and RITTER, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action for a judgment declaring that the plaintiff Mount Vernon Fire Insurance Company is not obligated to defend and indemnify the defendant Levi Timm in an action to recover damages for personal injuries brought against Timm by Chadwick Lundy, as father and natural guardian of Cipriana Lundy, and Chadwick Lundy, individually, the appeal, as limited by the appellants' brief, is from so much of an order of the Supreme Court, Kings County (Vinik, J.), dated May 23, 1996, as granted the renewed motion of Mount Vernon Fire Insurance Company for summary judgment declaring that it has no obligation to defend or indemnify Timm in the underlying action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The denial of a prior motion for summary judgment did not bar consideration of the plaintiff's subsequent renewed motion for the same relief. We are cognizant of the principle that multiple summary judgment motions in the same action are generally disfavored (see, e.g., Detko v. McDonald's Rests. of N.Y., 198 A.D.2d 208, 209, 603 N.Y.S.2d 496; Rose v. La Joux, 93 A.D.2d 817, 818, 460 N.Y.S.2d 612). However, under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in entertaining the plaintiff's motion (see, Detko v. McDonald's Rests. of N.Y., supra).

In denying the prior motion for summary judgment, the court concluded that there was an issue of fact as to whether the insured's policy contained a condition requiring the insured to give written notice of the accident to the insurance carrier as soon as practicable.

In granting the renewed motion for summary judgment, the court noted that even "where the policy is silent, the law implies a duty to give timely notice within a reasonable time" (Thomson v. Port Auth. of the State of N.Y., 217 A.D.2d 495, 497, 629 N.Y.S.2d 760; see, Ell Dee Clothing Co. v. Marsh, 247 N.Y. 392, 396, 160 N.E. 651; Guadagno v. Colonial...