Smalls v. Reliable Auto Service, Inc.

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore O'BRIEN
Citation612 N.Y.S.2d 674,205 A.D.2d 523
PartiesJames Garfield SMALLS, Plaintiff, v. RELIABLE AUTO SERVICE, INC., Defendant Third-Party Plaintiff-Respondent; Nationwide Mutual Insurance Company, Third-Party Defendant-Appellant.
Decision Date06 June 1994

Page 674

612 N.Y.S.2d 674
205 A.D.2d 523
James Garfield SMALLS, Plaintiff,
v.
RELIABLE AUTO SERVICE, INC., Defendant Third-Party
Plaintiff-Respondent;
Nationwide Mutual Insurance Company, Third-Party Defendant-Appellant.
Supreme Court, Appellate Division,
Second Department.
June 6, 1994.

Page 675

Farrell & Mahoney, P.C., Huntington Station (Patrick J. Mahoney, of counsel), for third-party defendant-appellant.

[205 A.D.2d 524] Before O'BRIEN, J.P., and RITTER, SANTUCCI and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

[205 A.D.2d 523] In an action to recover damages for personal injuries, in which the defendant Reliable Auto Service, Inc., brought a third-party action for a judgment declaring that Nationwide Mutual Insurance Company has a duty to defend and indemnify it in connection with the main personal injury action, Nationwide Mutual Insurance Company appeals from an order and judgment (one paper) of the Supreme Court, Queens County (O'Donoghue, J.), dated November 26, 1991, which, after a nonjury trial, is in favor of Reliable Auto Service, Inc., and against it, granting that relief.

ORDERED that the order and judgment is reversed, on the law, with costs, and it is declared that Nationwide Mutual Insurance Company is not obligated to defend or indemnify Reliable Auto Service, Inc., in connection with the personal injury action.

It is settled that an insured must give notice of an accident to its insurer within the time limit provided in the insurance policy or within a reasonable time thereafter under all the circumstances (see, Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76; Reliance Ins. Co. of N.Y. v. Garsart Bldg. Corp., 131 A.D.2d 828, 829, 517 N.Y.S.2d 189; Holyoke Mut. Ins. Co. v.

Page 676

B.T.B. Realty Corp., 83 A.D.2d 603, 604-605, 441 N.Y.S.2d 301; see also, Insurance Law § 3420). Since compliance with a proper "notice of claim" provision in an insurance policy is a condition precedent to an insurer's duty to defend or indemnify the insured (see, Empire City Subway Co. v. Greater N.Y. Mut. Ins. Co., 35 N.Y.2d 8, 358 N.Y.S.2d 691, 315 N.E.2d 755; Rushing v. Commercial Cas. Ins. Co., 251 N.Y. 302, 167 N.E. 450), absent a valid excuse, the failure of the insured to satisfy the notice requirement vitiates coverage, and the insurer need not demonstrate prejudice in order to disclaim coverage (see, Unigard Sec. Ins. Co. v. North Riv. Ins. Co., 79 N.Y.2d 576, 581, 584 N.Y.S.2d...

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15 practice notes
  • LaSalle Nat. Bank v. Duff & Phelps Credit Rating Co., No. 93 Civ. 4692 (WK) (AJP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 26, 1996
    ...Farr v. Newman, 14 N.Y.2d 183, 187, 250 N.Y.S.2d 272, 275, 199 N.E.2d 369 (1964); see also, e.g., Smalls v. Reliable Auto Service, Inc., 205 A.D.2d 523, 524, 612 N.Y.S.2d 674, 676 (2d "A person may be both agent of and trustee for another." 1 Scott & Fratcher, Scott on Trusts § 8 at 95 (4th......
  • US UNDERWRITERS INS. v. CONGREGATION B'NAI, No. 93-CV-5806 (JG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 5, 1995
    ...the defense of late notice. Sparacino v. Pawtucket Mut. Ins. Co., 50 F.3d 141, 143 (2d Cir.1995); Smalls v. Reliable Auto Service, Inc., 205 A.D.2d 523, 612 N.Y.S.2d 674, 675 (2d Dep't 1994). In order for a notice to be untimely, it must be demonstrated that "the circumstances known to the ......
  • Plotkin v. Republic-Franklin Ins. Co., 2016–04231
    • United States
    • New York Supreme Court Appellate Division
    • November 13, 2019
    ...agency, notwithstanding the fact that such information is never actually communicated to the principal" ( Smalls v. Reliable Auto Serv., 205 A.D.2d 523, 524, 612 N.Y.S.2d 674 ; see Center v. Hampton Affiliates, 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 ; Christopher S. v. Douglas......
  • Hyosung America, Inc. v. Sumagh Textile Co., Ltd., No. 94 Civ. 0568 (SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 19, 1996
    ...of its agent"). That rule applies even if the agent has withheld information from its principal. Smalls v. Reliable Auto Service, Inc., 205 A.D.2d 523, 524, 612 N.Y.S.2d 674 (2d Dep't 1994) ("A principal is bound by notice to or knowledge of his or her agent in all matters within the scope ......
  • Request a trial to view additional results
15 cases
  • LaSalle Nat. Bank v. Duff & Phelps Credit Rating Co., No. 93 Civ. 4692 (WK) (AJP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 26, 1996
    ...Farr v. Newman, 14 N.Y.2d 183, 187, 250 N.Y.S.2d 272, 275, 199 N.E.2d 369 (1964); see also, e.g., Smalls v. Reliable Auto Service, Inc., 205 A.D.2d 523, 524, 612 N.Y.S.2d 674, 676 (2d "A person may be both agent of and trustee for another." 1 Scott & Fratcher, Scott on Trusts § 8 at 95 (4th......
  • US UNDERWRITERS INS. v. CONGREGATION B'NAI, No. 93-CV-5806 (JG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 5, 1995
    ...the defense of late notice. Sparacino v. Pawtucket Mut. Ins. Co., 50 F.3d 141, 143 (2d Cir.1995); Smalls v. Reliable Auto Service, Inc., 205 A.D.2d 523, 612 N.Y.S.2d 674, 675 (2d Dep't 1994). In order for a notice to be untimely, it must be demonstrated that "the circumstances known to the ......
  • Plotkin v. Republic-Franklin Ins. Co., 2016–04231
    • United States
    • New York Supreme Court Appellate Division
    • November 13, 2019
    ...agency, notwithstanding the fact that such information is never actually communicated to the principal" ( Smalls v. Reliable Auto Serv., 205 A.D.2d 523, 524, 612 N.Y.S.2d 674 ; see Center v. Hampton Affiliates, 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 ; Christopher S. v. Douglas......
  • Hyosung America, Inc. v. Sumagh Textile Co., Ltd., No. 94 Civ. 0568 (SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 19, 1996
    ...of its agent"). That rule applies even if the agent has withheld information from its principal. Smalls v. Reliable Auto Service, Inc., 205 A.D.2d 523, 524, 612 N.Y.S.2d 674 (2d Dep't 1994) ("A principal is bound by notice to or knowledge of his or her agent in all matters within the scope ......
  • Request a trial to view additional results

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