Viggiano v. Encompass Insurance Company/Fireman's Insurance Company of Newark

• Decision Date: 26 April 2004
• Docket Number: 2003-02219.
• Citation: 6 A.D.3d 695,2004 NY Slip Op 03126,775 N.Y.S.2d 533
• Parties: ANGELA VIGGIANO et al., Appellants, v. ENCOMPASS INSURANCE COMPANY/FIREMAN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

6 A.D.3d 695

775 N.Y.S.2d 533

2004 NY Slip Op 03126

ANGELA VIGGIANO et al., Appellants, v.ENCOMPASS INSURANCE COMPANY/FIREMAN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, et al., Respondents.

2003-02219.

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 26, 2004.

In an action for a judgment declaring, inter alia, that the defendant Encompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey, is obligated to defend the defendant Mary Corso in an underlying action entitled Viggiano v Corso, pending in the Supreme Court, Nassau County, under Index No. 004536/02, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Phelan, J.), dated February 10, 2003, which granted the motion of the defendant Encompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey, for summary judgment declaring that it is not so obligated.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendantEncompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey, is not obligated to defend the defendantMary Corso in the underlying action.

The requirement that an insured comply with the notice provision of an insurance policy operates as a condition precedent to coverage (seeWhite v City of New York,81 NY2d 955, 957[1993];Unigard Sec. Ins. Co. v North Riv. Ins. Co.,79 NY2d 576, 581[1992];Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp.,31 NY2d 436, 440[1972];Genova v Regal Mar. Indus.,309 AD2d 733[2003]).Absent a valid excuse, the failure to comply with the notice requirement vitiates the policy, and an insurer need not demonstrate prejudice before it can assert the defense of noncompliance (seeSecurity Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., supra at 440).

Here, the written disclaimer of coverage sent to the defendant insured, Mary Corso, for her failure to satisfy the notice requirement of the policy was effective against the plaintiffs since they did not exercise their right to provide independent notification of the claim pursuant to Insurance Law § 3420 (a)(3)(seeMatter of First Cent. Ins. Co.,3 AD3d 494[2004];Travelers Indem. Co. v Worthy,281 AD2d 411[2001];Agway Ins. v Alvarez,258 AD2d 487[1999]).

The defendant insurer, Encompass Insurance Company/Fireman's Insurance Company of Newark, New Jersey, satisfied its prima facie entitlement...