Zeldin v. Interboro Mutual Indemnity Insurance Company

• Decision Date: 02 October 2007
• Docket Number: 24078/01.,2003-06183.
• Citation: 2007 NY Slip Op 07427,843 N.Y.S.2d 366,44 A.D.3d 652
• Parties: EVA ZELDIN, as Assignee of MIKHAIL MARKMAN, Also Known as MIKHAIL MARKHAM, Appellant, v. INTERBORO MUTUAL INDEMNITY INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

44 A.D.3d 652

843 N.Y.S.2d 366

2007 NY Slip Op 07427

EVA ZELDIN, as Assignee of MIKHAIL MARKMAN, Also Known as MIKHAIL MARKHAM, Appellant, v. INTERBORO MUTUAL INDEMNITY INSURANCE COMPANY, Respondent.

2003-06183.

24078/01.

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

Decided October 2, 2007.

In an action, inter alia, to recover damages for a bad faith breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated April 28, 2003, which denied her motion for summary judgment on the complaint and granted the defendant's cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On March 8, 1998 the plaintiff sustained serious personal injuries when she was a passenger in a vehicle owned and operated by Mikhail Markman, also known as Mikhail Markham. The plaintiff commenced an action to recover damages for personal injuries against Markman, who was insured by a policy issued to him by the defendant Interboro Mutual Indemnity Insurance Company (hereinafter Interboro). The applicable limit of the liability policy was $25,000. On August 5, 1999, after an inquest, the plaintiff obtained a default judgment against Markman in the sum of $2,024,657.53. Thereafter, Markman assigned all of his rights and claims against Interboro to the plaintiff. The plaintiff, as Markman's assignee, subsequently commenced this action against Interboro alleging, inter alia, that it committed a bad faith breach of contract by refusing to defend Markman in the underlying lawsuit.

"Where an insurance policy requires that notice of an occurrence be given promptly, notice must be given within a reasonable time in view of all of the facts and circumstances" (Eagle Ins. Co. v Zuckerman, 301 AD2d 493, 495 [2003]; see Merchants Mut. Ins. Co. v Hoffman, 56 NY2d 799, 801-802 [1982]; Travelers Indem. Co. v Worthy, 281 AD2d 411 [2001]). "Providing an insurer with timely notice of a potential claim is a condition precedent, and thus `[a]bsent a valid excuse, a failure to satisfy the notice requirement vitiates the policy'" (Sayed v Macari, 296 AD2d 396, 397 [2002], quoting Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]). Insurance Law § 3420 (a) (3) provides that a notice of claim to an insurer may be made by the insured, the injured person, or any other claimant (see Hazen v Otsego Mut. Fire Ins. Co., 286 AD2d 708, 709 [2001]; Eveready Ins. Co. v Chavis, 150 AD2d 332, 333 [1989]).

Here, although the plaintiff provided written notice to Interboro by letter dated June 1, 1998, it is undisputed that Markman wholly and inexcusably failed to notify Interboro of the accident in violation of the express requirements of the policy. Inasmuch as Markman failed to comply with the notice provisions of the policy, he, and therefore the plaintiff, who stands in his shoes for purposes of this action, is...