| York Speciality Food, Inc. v Tower Ins. Co. of N.Y. |
| 2008 NY Slip Op 00614 [47 AD3d 589] |
| January 31, 2008 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| York Speciality Food, Inc., Doing Business as Oscar's on York,
Respondent, v Tower Insurance Company of New York, Appellant, et al., Defendants. |
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Composto & Composto, Brooklyn (Frank A. Composto of counsel), for respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered November 16, 2006, which, to the extent appealed from, denied the motion of defendant Tower Insurance Company (Tower) for summary judgment dismissing the complaint against it, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in favor of Tower dismissing the complaint as against it.
Where a liability insurance policy requires notice of an occurrence to the carrier as soon as practicable, such notice must be given within a reasonable period of time (Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 [2005]). The insured's noncompliance with this requirement constitutes failure of a condition precedent, thus vitiating the contract as a matter of law, even without a showing of prejudice (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]).
Plaintiff became aware of the claimant's accident within three days, but did not notify Tower of the possibility of a claim until eight months later. Where a reasonable person could envision liability, that person has a duty to make some inquiry as to potential liability (White v City of New York, 81 NY2d 955, 958 [1993]). Although a good faith belief in nonliability may excuse the failure to give timely notice (see Great Canal Realty Corp., 5 NY3d at 743), there is no indication that plaintiff ever took any action to ascertain the possibility of its liability for the claimant's accident. Had plaintiff's president questioned his employees, some of whom had witnessed the accident, he would have learned that the claimant, after falling in front of the premises, had been taken away in an ambulance. Since he made no investigation at all, there is no basis for a good faith belief in plaintiff's nonliability. Concur—Andrias, J.P., Nardelli, Williams, Catterson and Moskowitz, JJ.