Opinion
April 8, 1971
Appeal from the Monroe Special Term.
Present — Marsh, J.P., Gabrielli, Moule, Cardamone and Henry, JJ.
Order unanimously reversed, without costs, defendant's motion granted and complaint dismissed. Memorandum: In an action for breach of an insurance contract, the assured has charged defendant with the failure and refusal to defend the plaintiff assured in an action brought for damages allegedly caused by plaintiff's subcontractor during the construction of a house. The operative facts are few and uncomplicated. The damage to the house occurred in 1964, and in January, 1967 the owner thereof commenced his action against plaintiff. The first notice given to defendant of either the accident or the commencement of suit was in late April, 1967 when plaintiff's attorney wrote to defendant's agent regarding the suit, and sought the name of the attorney to whom he should deliver the pleadings. Defendant thereafter disclaimed liability. In an attempt to explain the reason for failing to notify the insurer in 1964, respondent asserts that it assumed that the subcontractor would remedy the damage. It makes no explanation of its failure to notify appellant promptly in January, 1967 when the action was commenced, and for delaying such notice for three months. The policy clause upon which appellant rests its defense provides that "When an accident occurs written notice shall be given * * * as soon as practicable" and, further, that "If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons". It is conceded that the first notice of the accident given to appellant was in late April, 1967 when it received a letter from plaintiff's attorney, over three years from the occurrence in 1964 and over three months after the summons was served on plaintiff. In these circumstances, we cannot say that appellant was notified of the accident "as soon as practicable" or that respondent "immediately" forwarded the summons and complaint to appellant ( Deso v. London Lancashire Ind. Co. of Amer., 3 N.Y.2d 127; Rushing v. Commercial Cas. Ins. Co., 251 N.Y. 302; Vanderbilt v. Indemnity Ins. Co. of North Amer., 265 App. Div. 495; 8 Appleman, Insurance Law and Practice, § 4734). The failure to satisfy these requirements of the insuring contract compels us to reverse and grant summary judgment in favor of appellant dismissing the complaint.