& Budashewitz, LLP, New York, NY (Jeffrey A. Berson of
counsel), for appellant.
Carroll McNulty & Kull LLC, New York, NY (Douglas J.
Steinke and Ann Odelson of counsel), for respondent.
RANDALL T. ENG, P.J., L. PRISCILLA HALL, SHERI S. ROMAN,
SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
action pursuant to Insurance Law § 3420 to recover the
amount of an unsatisfied judgment against the defendant's
insured, the plaintiff appeals from an order of the Supreme
Court, Kings County (Partnow, J.), dated December 17, 2014,
which denied his motion for summary judgment on the complaint
and granted the defendant's cross motion for summary
judgment dismissing the complaint.
that the order is affirmed, with costs.
September 5, 2009, the plaintiff, Lazar Glanz, allegedly was
injured when he tripped and fell on a sidewalk at 92-94 Penn
Street in Brooklyn, a premises owned by 92-94 Penn, LLC
(hereinafter Penn). Penn was insured by the defendant, New
York Marine and General Insurance Company (hereinafter New
York Marine). Glanz commenced an action to recover damages
for personal injuries against Penn on October 27, 2010. Penn
failed to appear or answer the complaint, and Glanz's
motion for leave to enter a default judgment was granted by
order dated October 17, 2011. New York Marine first received
notice from Penn of Glanz's action on November 14, 2011,
and New York Marine disclaimed coverage on the basis of
Penn's untimely notice of claim by letter dated December
15, 2011. By letter dated December 20, 2011, Glanz, by his
attorneys, provided notice of his claim to New York Marine.
On May 2, 2013, a default judgment in the principal sum of
$285, 822.50 was entered against Penn.
thereafter commenced this action pursuant to Insurance Law
§ 3420 to recover the amount of the unsatisfied judgment
from New York Marine. Glanz moved for summary judgment on the
complaint, and New York Marine cross-moved for summary
judgment dismissing the complaint. The Supreme Court denied
Glanz's motion and granted New York Marine's cross
Law § 3420(a)(2) expressly permits an injured party to
recover any unsatisfied judgment against an insured, directly
from the insurer" (Becker v Colonial Coop. Ins.
Co., 24 A.D.3d 702, 704). Insurance Law §
3420(a)(3) requires the injured party to demonstrate that he
or she acted diligently in attempting to ascertain the
identity of the insurer, and thereafter expeditiously
notified the insurer (see Steinberg v Hermitage Ins.
Co., 26 A.D.3d 426, 428). "In determining the
reasonableness of an injured party's notice, the notice
required is measured less rigidly than that required of the
insureds" (Malik v Charter Oak Fire Ins. Co.,
60 A.D.3d 1013, 1016 [internal quotation marks omitted];
see Spentrev Realty Corp. v United Natl. Specialty Ins.
Co., 90 A.D.3d 636, 637). "The injured person's
rights must be judged by the prospects for giving notice that
were afforded him [or her], not by those available to the
insured" (Lauritano v American Fid. Fire Ins.
Co., 3 A.D.2d 564, 568, affd 4 N.Y.2d 1028).
"What is reasonably possible for the insured may not be
reasonably possible for the person he [or she] has injured.
The passage of time does not of itself make delay
unreasonable" (id. at 568).
New York Marine made a prima facie showing that Glanz failed
to act diligently in attempting to ascertain New York
Marine's identity and in expeditiously notifying it of
his claim (see Mt. Hawley Ins. Co. v Seville Elecs.
Trading Corp., 139 A.D.3d 921; Karl v North Country
Ins. Co., 137 A.D.3d 865; Spentrev Realty Corp. v
United Natl. Specialty Ins. Co., 90 A.D.3d 636;
Ringel v Blue Ridge Ins. Co., 293 A.D.2d 460, 462).
In opposition, Glanz failed to raise a triable issue of fact
(see Alvarez v Prospect Hosp., 68 N.Y.2d 320). For
those same reasons, Glanz failed to meet his prima facie
burden on his motion for summary judgment on the complaint
(see Mt. Hawley Ins. Co. v Seville Elecs. Trading
Corp., 139 A.D.3d 921; Karl v North Country Ins.
Co., 137 A.D.3d 865; Spentrev Realty Corp. v United
Natl. Specialty Ins. Co., 90 A.D.3d 636; Ringel v
Blue Ridge Ins. Co., 293 A.D.2d at 462).
Glanz's argument that New York Marine's disclaimer
was ineffective against him is without merit. "[W]here
the insured is the first to notify the carrier, even if that
notice is untimely, any subsequent information provided by
the injured party is superfluous for notice purposes and need
not be addressed in the notice of disclaimer issued by the
insurer" (Ringel v Blue Ridge Ins. Co., 293
A.D.2d at 462; see Rochester v Quincy Mut. Fire Ins.
Co., 10 A.D.3d 417, 418; Massachusetts Bay Ins. Co.
v Flood, 128 A.D.2d 683, 684).
Glanz did not notify New York Marine of his claim until after
the insured, Penn, had done so. Thus, New York Marine was not
required to cite Glanz's failure to provide notice in its
disclaimer letter of December 15, 2011 (see Golebiewski v
National Union Fire Ins. Co. of Pittsburgh, Pa., 101
A.D.3d 1074; Steinberg v Hermitage Ins. Co., 26
A.D.3d 426, 428; Rochester v Quincy Mut. Fire Ins.
Co., 10 A.D.3d 417; Ringel v Blue Ridge Ins.
Co., 293 A.D.2d at 462). Glanz's remaining
contention is improperly raised for the first time on appeal.
the Supreme Court properly granted the cross motion of New
York Marine for summary judgment dismissing the complaint.
For the same reasons, the court properly denied ...