Deoraj Ramlochan, as administrator of the estate of Karishma Ramlochan, deceased, and Deoraj Ramlochan, individually, appellant,
Scottsdale Insurance Company, respondent. Index No. 702183/13
F. Danzi, Westbury, NY (Christine Coscia of counsel), for
Carroll McNulty & Kull, LLC, New York, NY (Ann Odelson of
counsel), for respondent.
E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, BETSY
DECISION & ORDER
action pursuant to Insurance Law § 3420(a)(2) to recover
the amount of an unsatisfied judgment against the
defendant's insured, and for a judgment declaring that
the defendant is obligated to satisfy the judgment, the
plaintiff appeals from an order of the Supreme Court, Queens
County (Brathwaite Nelson, J.), dated April 6, 2015, which
denied his motion for summary judgment on the complaint and
granted the defendant's cross motion for summary judgment
declaring that it has no obligation to satisfy the judgment.
that the order is affirmed, with costs, and the matter is
remitted to the Supreme Court, Queens County, for the entry
of a judgment declaring that the defendant has no duty to
satisfy the judgment in the underlying action entitled
Ramlochan v Sweet P. Home Care, Inc., commenced in
that court under Index No. 24016/09.
an insurance policy requires that notice of an occurrence be
given "as soon as practicable, " notice must be
given within a reasonable time in view of all of the
circumstances (see Great Canal Realty Corp. v Seneca Ins.
Co., Inc., 5 N.Y.3d 742, 743; Aspen Ins. UK Ltd. v
Nieto, 137 A.D.3d 720, 720; Ponok Realty Corp. v
United Natl. Specialty Ins. Co., 69 A.D.3d 596, 597;
120 Whitehall Realty Assoc., LLC v Hermitage Ins.
Co., 40 A.D.3d 719, 721). "The insured's
failure to satisfy the notice requirement constitutes a
failure to comply with a condition precedent which, as a
matter of law, vitiates the contract'" (Great
Canal Realty Corp. v Seneca Ins. Co., Inc., 5 N.Y.3d at
743, quoting Argo Corp. v Greater N.Y. Mut. Ins.
Co., 4 N.Y.3d 332, 339; see Sputnik Rest. Corp. v
United Natl. Ins. Co., 62 A.D.3d 689, 689).
"However, circumstances may exist that will excuse or
explain the insured's delay in giving notice, such as a
reasonable belief in nonliability" (Genova v Regal
Mar. Indus., 309 A.D.2d 733, 734; see Great Canal
Realty Corp. v Seneca Ins. Co., Inc., 5 N.Y.3d at
743-744; Ponok Realty Corp. v United Natl. Specialty Ins.
Co., 69 A.D.3d at 597; C.C.R. Realty of Dutchess v
New York Cent. Mut. Fire Ins. Co., 1 A.D.3d 304, 305).
It is the insured's burden to demonstrate the
reasonableness of the excuse (see Bigman Bros., Inc. v
QBE Ins. Corp., 73 A.D.3d 1110, 1111; Ponok Realty
Corp. v United Natl. Specialty Ins. Co., 69 A.D.3d at
597; Genova v Regal Mar. Indus., 309 A.D.2d at 734).
the defendant Scottsdale Insurance Company (hereinafter
Scottsdale) established its prima facie entitlement to
judgment as a matter of law. Scottsdale demonstrated that its
insured knew of the occurrence immediately and received a
letter of representation from the plaintiff's attorney in
June 2008, but waited until September 25, 2009, to notify
Scottsdale (see Great Canal Realty Corp. v Seneca Ins.
Co., Inc., 5 N.Y.3d at 743; Guideone Ins. Co. v
Darkei Noam Rabbinical Coll., 120 A.D.3d 625, 627).
Since the subject policy was issued prior to the amendment to
Insurance Law § 3420, Scottsdale was not required to
show that it was prejudiced by the failure to give timely
notice in order to satisfy its prima facie burden (see
Briggs Ave. LLC v Insurance Corp. of Hannover, 11 N.Y.3d
377, 381; Kraemer Bldg. Corp. v Scottsdale Ins. Co.,
136 A.D.3d 1205, 1207; AH Prop., LLC v New Hampshire Ins.
Co., 95 A.D.3d 1243, 1245). In opposition, the plaintiff
failed to raise a triable issue of fact as to whether the
insured's delay in notifying Scottsdale was reasonable
based upon its good faith belief in nonliability (see
Donovan v Empire Ins. Group, 49 A.D.3d 589, 591).
contrary to the plaintiff's contention, Scottsdale
demonstrated, prima facie, that its delay in disclaiming
coverage was reasonable under the circumstances. While
Insurance Law § 3420(d)(2) requires an insurer to give
written notice of a disclaimer of coverage "as soon as
is reasonably possible" (Insurance Law §
3420[d]; see Guideone Ins. Co. v Darkei Noam
Rabbinical Coll., 120 A.D.3d at 627), an investigation
into issues affecting the decision whether to disclaim may
excuse a delay (see Magistro v Buttered Bagel, Inc.,
79 A.D.3d 822, 824-825; Hermitage Ins. Co. v Arm-ing,
Inc., 46 A.D.3d 620, 621; Tully Constr. Co., Inc. v
TIG Ins. Co., 43 A.D.3d 1150, 1152). Here, Scottsdale
demonstrated that, under the circumstances of this case, its
delay in issuing the disclaimer of coverage was reasonably
related to the completion of a necessary, thorough, and
diligent investigation into issues affecting its decision to
disclaim (see Magistro v Buttered Bagel, Inc., 79
A.D.3d at 824-825; Hermitage Ins. Co. v Arm-ing,
Inc., 46 A.D.3d at 621; Tully Constr. Co., Inc. v
TIG Ins. Co., 43 A.D.3d at 1153). In opposition, the
plaintiff failed to raise a triable issue of fact as to the
timeliness of the disclaimer. Thus, contrary to the
plaintiff's contention, the Supreme Court properly
determined that the disclaimer of coverage issued by
Scottsdale was timely.
the Supreme Court properly denied the plaintiff's motion
for summary judgment and granted Scottsdale's cross
motion for summary judgment. Since this is a declaratory
judgment action, we remit the matter to the Supreme Court,
Queens County, for the entry of a judgment declaring that
Scottsdale has no duty to satisfy the judgment in the
underlying action, entitled Ramlochan v Sweet ...