White by White v. City of New York

• Decision Date: 29 April 1993
• Citation: 615 N.E.2d 216,81 N.Y.2d 955,598 N.Y.S.2d 759
• Parties: , 615 N.E.2d 216 Enga WHITE, an Infant, by Her Mother and Natural Guardian, Edna WHITE, et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants. NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Appellant, v. ALL CITY INSURANCE COMPANY, a Division of Empire Insurance Group, Third-Party Defendant-Respondent, et al., Third-Party Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 759

598 N.Y.S.2d 759

81 N.Y.2d 955, 615 N.E.2d 216

Enga WHITE, an Infant, by Her Mother and Natural Guardian, Edna WHITE, et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants.

NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Appellant, v. ALL CITY INSURANCE COMPANY, a Division of Empire Insurance

Group, Third-Party Defendant-Respondent, et al.,

Third-Party Defendants.

Court of Appeals of New York.

April 29, 1993.

[81 N.Y.2d 956] Kanterman, Taub & Breitner, P.C., New York City (Bruce M. Young and Elisa F. Cullen, of counsel), for appellant.

Seligson, Rothman & Rothman, New York City (Alyne I. Diamond and Martin S. Rothman, of counsel), and Adolph B. Salib, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 180 A.D.2d 324, 585 N.Y.S.2d 41, should be affirmed, with costs.

On September 2, 1975, three-year-old Enga White fell from a slide at a playground in project housing owned and main tained by the New York City Housing Authority (NYCHA), fracturing her skull and requiring six days' hospitalization. The only witnesses to the accident were Enga's three brothers, ages 9, 13 and 14. A Housing Authority Police Officer was called to the scene, filled out an incident report in triplicate, filed one copy with his precinct command, and sent two copies to his superiors. No other Housing Authority personnel were aware of the incident at that time.

Ten years later, on September 11, 1985, Enga's mother moved for--and was granted--permission to file a late notice of claim against NYCHA after Enga began to have seizures allegedly attributable to the playground incident. On October 22, 1985, NYCHA gave notice of the claim to Empire, its insurance carrier. Empire disclaimed coverage on the grounds that the notice was not given "as soon as practicable" as required by the policy. NYCHA commenced this third-party action against Empire for a declaratory judgment that there was coverage.

At a hearing held solely on this issue, testimony revealed that NYCHA generally gave notice to Empire by either filling out a special insurance report form or by forwarding a notice of claim; the form filled out by the Housing Police Officer had three copies--one of which was retained by the precinct with the other two forwarded to superior officers in the Housing Police Department; the Housing Police were employed by the NYCHA; the form the Housing Police Officer filled out was not sent to NYCHA, and there was no procedure established for NYCHA to receive such forms; and NYCHA did not receive any other notice of the incident. On this record, Supreme Court refused to impute the knowledge of the Housing Police to the NYCHA. The Appellate Division (two Justices dissenting) disagreed. We now affirm the Appellate Division.

The requirement that an insured notify its liability carrier of a potential claim "as soon as practicable" operates as a condition precedent to coverage ( 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; Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d 76). There may be circumstances, such as lack of knowledge that an accident...