suffering from. Dr. Halperin also indicated on the Physician's
Statement that his initial consultation with Steinberg occurred
on November 6, 1996, and that the symptoms of the diseases first
appeared on October 14, 1996.
On May 22, 1997, Steinberg was examined by Dr. Robert Malkin
("Dr.Malkin") at the request of Paul Revere. Based on his
examination and a review of her medical records, Dr. Malkin
confirmed that plaintiff's visual impairments rendered her
disabled from her job as a radiologist. (Plaintiff's Ex. G).
After receiving Dr. Malkin's report, Paul Revere initiated
monthly payments of $6000, as per the terms of the insurance
policy, retroactive to November 6, 1996. Plaintiff continues to
receive such disability benefits to this date.
Plaintiff filed suit in New York state court on December 18,
1997, seeking benefits for the 18 month period beginning on May,
13, 1995 to November 6, 1996. The case was subsequently removed
to this court on defendant's motion. On September 15, 1998,
defendant moved for summary judgment. Plaintiff's cross-motion
for summary judgment was filed on November 19, 1998.
A. Summary Judgment Standard
Under Rule 56(c), F.R. Civ. P., summary judgment is rendered
when "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law."
"[T]he substantive law will identify which facts are material . .
. [and] [o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
B. "No Prejudice" Rule
Under New York law, compliance with a notice of claim provision
in an insurance policy is a condition precedent to an insurer's
liability under the policy. See State of New York v. Blank,
27 F.3d 783, 793 (2d Cir. 1994) ("We have previously observed that,
under New York law, an insured has an obligation to comply with
notice-of-occurrence and notice-of-claims provisions of an
insurance policy."); Commercial Union Ins. Co. v. International
Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir. 1987).
Paul Revere asserts that Steinberg is not entitled to benefits
for the 18 month period because her notice of claim was more than
one year late under the terms of her insurance policy.
Steinberg does not dispute that her notice of claim for
benefits during the 18 month period was untimely; rather, she
argues that Paul Revere must demonstrate that it was prejudiced
by her late notice of claim before disallowing benefits on this
basis. However, it is well-settled that late notice is a complete
defense whether or not the insurance company was prejudiced by
the delay in disputes between an insured and its primary insurer.
See Blank, 27 F.3d at 797 (contrasting cases involving
co-insurers and reinsurers in which New York courts have refused
to follow the "no prejudice" rule); AXA Marine and Aviation Ins.
(UK) Ltd. v. Seajet Indus. Inc., 84 F.3d 622, 624-25 (2d Cir.
1996) ("The no prejudice rule relieves the burden on the insurer
to prove that prejudice resulted from the insured's failure to
provide notice."). Contrary to plaintiff's suggestion, the "no
prejudice" rule applies in full force to actions seeking to
recover disability benefits.*fn1 See Gresham v. American Gen.
Life Ins. Co. of New York, 135 A.D.2d 1121, 523 N.Y.S.2d 282,
282 (1987) (holding that plaintiff's unexcused delay in serving
notice of claim precluded recovery on disability policy); Abrams
v. Standard Sec. Life Ins. Co., 88 A.D.2d 578, 449 N.Y.S.2d 804,
805 (1982) (same). Plaintiff's argument that Paul Revere must
demonstrate prejudice is plainly without merit.
C. Excusable Delay
Under New York law, an insured's duty to provide notice to the
insurer is triggered when "circumstances known to the insured at
the time would have suggested to a reasonable person the
possibility of a claim." See Commercial Union Ins. Co., 822
F.2d at 272 (collecting cases). See also Leonzo v. First Unum
Life Ins. Co., 1994 WL 455203, *2 (S.D.N.Y. August 23, 1994)
(Duffy, J.) (disability insurance action). However, an insured's
failure to provide timely notice may be excused if the insured
has offered a valid excuse for the delay.*fn2 See Blank, 27
F.3d at 795. See, e.g., Sparacino v. Pawtucket Mut. Ins. Co.,
50 F.3d 141, 143-44 (2d Cir. 1995) (holding delay in providing
notice was excusable because insured had relied on opinion of
insurance broker that it was not covered by the policy). It is
the burden of the insured to prove that the delay in notifying
the insurance company was excusable. See Olin Corp. v. Insurance
Co. of North America, 966 F.2d 718, 724 (2d Cir. 1992).
Moreover, while the question of whether delay is excusable is
generally a question of fact for a jury to decide, "a delay may
be unreasonable as a matter of law when either no excuse is
advanced or a proffered reason is meritless." Id.
In the instant case, Steinberg states in her affidavit that
based on Dr. Draga's diagnosis of Lyme disease, which was later
found to be incorrect, she believed her symptoms to be temporary
and not permanently disabling. (Steinberg Aff. ¶ 5-9). Thus,
according to plaintiff, she did not file a notice of claim in
May, 1995, because she was mistakenly under the belief that she
suffered from Lyme disease and was unaware that her symptoms in
fact stemmed from Multiple Sclerosis, which is incurable.
(Steinberg Aff. ¶ 5-9).
However, while the court is to draw all inferences in favor of
a non-movant on a summary judgment motion, it cannot ignore the
evidence that Steinberg was aware that in Dr. Draga's opinion her
visual impairments, regardless of their cause,
rendered her disabled from her job as a radiologist. Neither can
the court ignore the fact that the explanation Steinberg
presented in her affidavit contradicts her prior deposition
testimony. In her deposition, Steinberg indicated that she did
not file a claim in May, 1995, because she was concerned that
such a claim would have negatively affected her defense in the
malpractice suits against her. (Steinberg Dep. at 96-97). Indeed,
she testified that she "just was petrified that [a claim for
disability] would be found and shown at trial and that would be
the end. . . ." (Steinberg Dep. at 97). Steinberg also admitted
that she gave a different explanation to a representative of Paul
Revere when the representative asked why her notice had been
late: "I was very afraid if somebody wrote it or anything. Yes, I
didn't tell your representative. . . . I didn't want it to be
said that I couldn't see. Your representative came to see me,
[but] I didn't want to tell him about the malpractice case."
(Steinberg Dep. at 97). In addition, when asked if there was any
other reason while she did not file a notice of claim for over a
year, Steinberg replied: "That was enough. It felt like enough to
me." (Steinberg Dep. at 98).
The court is mindful that in determining a summary judgment
motion, it "is not to weigh the evidence, or assess the
credibility of witnesses, or resolve issues of fact." See
Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995)
(collecting cases). At the same time, however, it is also
well-settled that a party may not create an issue of fact by
submitting an affidavit in opposition to a summary judgment
motion that, by omission or addition, contradicts the affiant's
previous deposition testimony. See Hayes v. New York City Dep't
of Corrections, 84 F.3d 614, 619 (2d Cir. 1996) ("`If a party
who has been examined at length on deposition could raise an
issue of fact simply by submitting an affidavit contradicting his
own prior testimony, this would greatly diminish the utility of
summary judgment as a procedure for screening out sham issues of
fact.'"); Mack v. United States, 814 F.2d 120, 124 (2d Cir.
1987) (noting that a party's affidavit which contradicts his own
prior deposition testimony should be disregarded on a motion for
summary judgment). Accordingly, the court holds that Steinberg
has not created a material issue of fact as to whether her reason
for filing a late notice of claim was excusable. Steinberg's
concerns regarding the impact of a disability claim on the
pending malpractice litigation against her simply cannot, as a
matter of law, constitute a valid excuse for her untimely notice.
Under New York law, waiver of a defense is proven by direct or
circumstantial evidence that the insurer voluntarily and
intentionally relinquished a known right. See State of New York
v. AMRO Realty Corp., 936 F.2d 1420, 1431 (2d Cir. 1991).
Moreover, "an insurer is deemed, as a matter of law, to have
intended to waive a defense to coverage where other defenses are
asserted, and where the insurer possesses sufficient knowledge
(actual or constructive) of the circumstances regarding the
unasserted defense." Id. See also Luria Bros. & Co. v. Alliance
Assur. Co., 780 F.2d 1082, 1090 (2d Cir. 1986) ("`[W]hen one
specific ground of forfeiture is urged against the claim, and a
refusal to pay is based upon a specific ground, all other grounds
In the instant action, plaintiff contends that Paul Revere
waived the late notice defense by disclaiming coverage on the
ground that she was not disabled in its August 30, 1996 letter.
However, Paul Revere's statement on the August 30, 1996 letter
that it was denying coverage because plaintiff did not "fit the
definition of total disability" must be considered in context.
First, it is undisputed that in Paul Revere's initial disclaimer
letter of July 6, 1996, it clearly stated that plaintiff had not
made a timely notice of claim. Second, the August 30, 1996 letter
once again mentions the fact that claims must be filed within 30
days or as soon as reasonably possible
after the onset of covered loss. Given this evidence, the court
finds that no reasonable factfinder could conclude that Paul
Revere intentionally and voluntarily abandoned a late notice
defense. Cf. AMRO Realty Corp., 936 F.2d at 1432 (holding
insurance company's assertion of several grounds for disclaimer
without mentioning late notice as waiver of defense).
Steinberg also suggests that Paul Revere waived the late notice
defense by conducting a medical investigation of her condition
after her November 18, 1996 claim submission, and by subsequently
determining that she was entitled to disability benefits. The
court declines to adopt plaintiff's reasoning. Such a holding
would encourage insurance companies to decline otherwise valid,
timely claims in fear of waiving defenses to previously submitted
untimely claims. Lastly, while Steinberg repeatedly asserts that
Paul Revere's commencement date is arbitrary, the selection of
November 6, 1996 plainly comports with the terms of the insurance
For the reasons stated above, defendant's motion for summary
judgment is granted and plaintiff's cross-motion for summary
judgment is denied. Plaintiff's complaint is hereby dismissed in
its entirety. Defendant's motion for attorney's costs and fees is
IT IS SO ORDERED.