Sorbara Const. Corp. v. Aiu Ins. Co.

• Decision Date: 21 October 2008
• Docket Number: No. 157,157
• Citation: 897 N.E.2d 1054,11 N.Y.3d 805
• Parties: SORBARA CONSTRUCTION CORPORATION, Appellant, v. AIU INSURANCE COMPANY, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

897 N.E.2d 1054

11 N.Y.3d 805

SORBARA CONSTRUCTION CORPORATION, Appellant, v. AIU INSURANCE COMPANY, Respondent, et al., Defendants.

No. 157

Court of Appeals of New York.

October 21, 2008.

Herzfeld & Rubin, PC, New York City (David B. Hamm and Miriam Skolnik of counsel), for appellant.

Hodgson Russ LLP, Buffalo (Kevin D. Szczepanski and Patrick M. Tomovic of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

It is well settled that when a policy of liability insurance requires that notice of an occurrence be given "as soon as practicable," such notice must be provided within a reasonable period of time; failure to give such notice relieves the insurer of its obligations under the contract, regardless of whether the insurer was prejudiced by the delay (Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 N.Y.3d 742, 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196 [2005]; Argo Corp. v. Greater N.Y. Mut. Ins. Co., 4 N.Y.3d 332, 339, 794 N.Y.S.2d 704, 827 N.E.2d 762 [2005]).

Contrary to the insured's contention in this case, notice provided under the workers' compensation policy at the time of the incident did not constitute notice under the liability policy even though both policies were written by the same carrier (see generally Nationwide Ins. Co. v. Empire Ins. Co., 294 A.D.2d 546, 548, 742 N.Y.S.2d 387 [2d Dept.2002]; 57th St. Mgt. Corp. v. Zurich Ins. Co., 208 A.D.2d 801, 802, 617 N.Y.S.2d 852 [2d Dept.1994]). Each policy imposes upon the insured a separate, contractual duty to provide notice. Similarly, an additional insured's notice to the carrier under a different policy does not excuse the insured's obligation to provide timely notice under its policy (see Travelers Ins. Co. v. Volmar Const. Co., 300 A.D.2d 40, 752 N.Y.S.2d 286 [1st Dept. 2002]).

Here, the insured did not give notice to the insurer until it was sued in a third-party action — some 5½ years after the accident. Under the circumstances of this case, such notice was unreasonable as a matter of law and relieved the insurer of its obligation to defend or indemnify the insured.

The insured's remaining contention is without merit.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

Order affirmed, with costs, in a memorandum.