Opinion
April 9, 1968
Appeal from the Erie Trial Term.
Present — Bastow, J.P., Goldman, Del Vecchio, Witmer and Henry, JJ.
Judgment and order unanimously reversed, without costs and new trial granted. Memorandum: The accident occurred October 24, 1965, and at that time plaintiff heard Mrs. Doering, the owner and operator of the other vehicle, tell a police officer that she was insured by the Travelers Insurance Company. On May 19, 1966 plaintiff began an action against Mrs. Doering to recover damages for his injuries; and on June 9, 1966 he learned that the insurance on Mrs. Doering's vehicle was cancelled three weeks before the accident. A week later he notified appellant MVAIC of his intention to file claim against it, seven and one-half months after the accident. The court below held that as a matter of law this notice was "as soon as practicable" within the indorsement provision of plaintiff's insurance policy. On the contrary, we hold that a question of fact is presented which should be submitted to a jury (Matter of Haas v. MVAIC 29 A.D.2d 447).