La Par v. Nationwide Mut. Ins. Co.

• Decision Date: 15 November 1991
• Citation: 177 A.D.2d 983,579 N.Y.S.2d 919
• Parties: Denise Weeks LA PAR, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 919

579 N.Y.S.2d 919

177 A.D.2d 983

Denise Weeks LA PAR, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

Supreme Court of New York, Appellate Division, Fourth Department.

November 15, 1991

Pinsky & Skandalis by Philip Pinsky, Syracuse, for appellant. Hiscock & Barclay by Judith Sayles, Syracuse, for respondent.

Judgment affirmed with costs for reasons stated in decision at Supreme Court, Stone, J.

All concur, except BOOMER and PINE, JJ., who dissent in part and vote to modify in the following Memorandum:

We respectfully dissent in part. In our view, Supreme Court erred in concluding that plaintiff was not required to give timely written notice of her claim to defendant and in denying defendant summary judgment dismissing the complaint. Plaintiff made a claim for underinsured motorist coverage pursuant to the supplementary uninsured motorist endorsement of her father's automobile insurance policy (endorsement 1737). That endorsement included no express notice requirement but explicitly stated that it was an amendment to the policy's New York automobile accident indemnification endorsement (endorsement 1751), which required that plaintiff provide written notice of her claim to defendant within 90 days or as soon as practicable. The plain language of the endorsements, read in the context of the statute authorizing uninsured and supplementary uninsured motorist coverage (see, Insurance Law § 3420[f][1], [2], compels the conclusion that plaintiff's claim was subject to the notice requirement of endorsement 1751 (see, Reichel v. Government Employees Ins. Co., 107 A.D.2d 463, 487 N.Y.S.2d 99, affd. 66 N.Y.2d 1000, 499 N.Y.S.2d 385, 489 N.E.2d 1287; see also, Schiebel v. Nationwide Mut. Ins. Co., 166 A.D.2d 520, 560 N.Y.S.2d 801). Moreover, the record in this case reveals that, in making her claim, plaintiff was aware that it was subject to the conditions and requirements of endorsement 1751. Plaintiff's only contention on appeal is that the notice requirement in endorsement 1751 was inapplicable. There is no dispute in this case that plaintiff did not give written notice of her claim to defendant until more than 33 months after the injury-causing accident. (Appeal from Judgment of Supreme Court, Onondaga County, Stone, J.--Declaratory Judgment.)

DENMAN, J.P., BOOMER, GREEN, PINE and DAVIS, JJ.