The opinion of the court was delivered by: BYERS
This is a motion by a third-party defendant to dismiss the third-party complaint, for failure to give notice of claim within the time specified in the policy involved; or in the alternative, to grant a severance as to the third-party action.
The dispute is obviously between two liability companies that insured the defendant Tube, and Eazor respectively.
The plaintiff Andretta was an employee of the latter on July 2, 1957 and asserts that he was injured at about 11:40 'while walking on top of crates of merchandise stowed on his truck, tripped on some of the merchandise and fell off the truck to the ground.' (Pretrial conference May 19, 1959.)
He brought suit against Tube and in his complaint, filed July 29, 1958, alleged:
'2. On July 2, 1957, the plaintiff was an invitee on the premises of defendant's place of business in Garden City, New York.
'3. At the said time and place, the defendant through its agents, servants or employees so negligently operated a crane as to cause plaintiff to fall and suffer injury.'
An answer was filed August 26, 1958 denying the above quoted allegations and pleading as a defense contributory negligence.
On December 2, 1959 the plaintiff brought its motion for leave to implead its employee Schlapa who was operating the crane referred to in paragraph 3 of the complaint quoted above. That motion was denied by Judge Abruzzo for reasons stated in his opinion of December 22, 1959.
Meanwhile, on June 22, 1959 on unopposed motion, Judge Smith, sitting in this court, signed an order granting Tube's motion to add Nationwide Insurance Company, the liability insurer of plaintiff's employer Eazor, to be called Nationwide, as third-party defendant. (Seemingly the correct corporate name is Nationwide Mutual Insurance Company.) Such complaint was filed July 1, 1959, and the answer thereto on September 21, 1959.
The motion to dismiss presents two important contentions:
A. That notice of the accident was not given to Nationwide 'as soon as practicable' within the terms of the policy of insurance issued to Eazor.
Since, Tube filed its answer on August 26, 1958, that date must be deemed as fixing its knowledge of the occurrence upon which plaintiff relies to sustain his cause. It would be difficult to conclude that Eazor would have been deemed to have given notice to its insurer, 'as soon as practicable' had it failed to do so until ten months had elapsed, namely the date of the order of impleader which was June 22, 1959, nearly two years after plaintiff's injury. It is to be remembered that Tube seeks coverage under the Eazor policy, which must define its present rights.
This aspect of the case may depend upon facts not appearing in the motion papers, that is a triable issue may be present.
B. That since liability has not been established against Tube, thereby giving it a status under the Eazor policy, the provisions of Section 8 of which are thus drawn into question. That section need not be quoted, but it provides in effect that the insured's obligation must ...