Serravillo v. Sterling Ins. Co.

Decision Date03 May 1999
Citation261 AD2d 384,689 N.Y.S.2d 521
Parties1999 N.Y. Slip Op. 3933 Carmela SERRAVILLO, appellant, v. STERLING INSURANCE COMPANY, respondent.
CourtNew York Supreme Court — Appellate Division

Ginsberg, Katsorhis & Fedrizzi, Flushing, N.Y. (Linda F. Fedrizzi of counsel), for appellant.

Allen Johnson & Lonergan, LLP, Albany, N.Y. (Mary Ann D. Allen of counsel), for respondent.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to collect the proceeds of a homeowner's insurance policy issued by the defendant, the plaintiff appeals from an order of the Supreme Court, Kings County (Belen, J.), entered May 8, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

It is well established that the failure to comply with provisions of an insurance policy requiring timely notice of an accident vitiates the contract, both as to the insured and to one injured or damaged by his acts (see, Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d 76; Deso v. London & Lancashire Ind. Co., 3 N.Y.2d 127, 129, 164 N.Y.S.2d 689, 143 N.E.2d 889; Jenkins v. Burgos, 99 A.D.2d 217, 219, 472 N.Y.S.2d 373). The policy provision which required the insured to "promptly give * * * notice" to the defendant insurance carrier or its agent, required the insured to give notice within a reasonable time under the circumstances (see, White v. City of New York, 81 N.Y.2d 955, 957, 598 N.Y.S.2d 759, 615 N.E.2d 216; Unigard Sec. Ins. Co. v. North Riv. Ins. Co., 79 N.Y.2d 576, 581, 584 N.Y.S.2d 290, 594 N.E.2d 571; Merchants Mut. Ins. Co. v. Hoffman, 56 N.Y.2d 799, 801, 452 N.Y.S.2d 398, 437 N.E.2d 1155; Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., supra). Furthermore, while Insurance Law § 3420(a)(3) provides, in pertinent part, that written notice by or on behalf of the injured party shall be deemed notice to the carrier, the injured party has the burden of proving that she or her counsel acted diligently in attempting to ascertain the identity of the carrier and, thereafter expeditiously notified the carrier (see, Government Employees Ins. Co. v. Blecker, 150 A.D.2d 428, 541 N.Y.S.2d 39; Eveready Ins. Co. v. Chavis, 150 A.D.2d 332, 540 N.Y.S.2d 860; National Grange Mut. Ins. Co. v. Diaz, 111 A.D.2d 700, 701, 490 N.Y.S.2d 516). At bar, the nine-month delay in giving notice of the accident and the five-month delay in giving notice of the underlying action, in the absence of excuse or mitigating factors, and in light of the close family relationship between the injured plaintiff and the insureds, was unreasonable as a matter of law (see, Rodriguez v....

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1 cases
  • Serravillo v. STERLING INSURANCE COMPANY
    • United States
    • New York Supreme Court — Appellate Division
    • May 3, 1999
    ... ... Ordered that the order is affirmed, with costs ... It is well established that the failure to comply with provisions of an insurance policy requiring timely notice of an accident vitiates the contract, both as to the insured and to one injured or damaged by his acts (see, Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 440; Deso v London & Lancashire Indem. Co., 3 NY2d 127, 129; Jenkins v Burgos, 99 AD2d 217, 219). The policy provision which required the insured to "promptly give * * * notice" to the defendant insurance [261 A.D.2d 385] carrier or its agent, required ... ...

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