Opinion
01-29-2015
24 FIFTH OWNERS, INC., et al, Plaintiffs–Appellants, v. SIRIUS AMERICA INSURANCE COMPANY now known as Delos Insurance Company, Defendant–Respondent, Illinois Union Insurance Company, et al., Defendants.
Brill & Associates, P.C., New York (Corey M. Reichardt of counsel), for appellants. Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for respondent.
Brill & Associates, P.C., New York (Corey M. Reichardt of counsel), for appellants.
Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Carol Robinson Edmead, J.), entered June 14, 2013, which denied plaintiffs' motion for summary judgment, unanimously affirmed, with costs.
Plaintiffs' claim that Sirius's disclaimer letter did not specify that the late notice defense was based on the time that had elapsed between 24 Fifth Owners, Inc.'s receipt of the underlying complaint and the tender to Sirius, even considered for the first time on appeal as a purely legal argument (cf. Titova v. D'Nodal, 117 A.D.3d 431, 431, 985 N.Y.S.2d 229 [1st Dept.2014] ), is unavailing, as the letter, which also referenced the policy condition relied upon, sufficiently apprised plaintiffs that notice was considered untimely relative to either event—the date of occurrence or of receipt of the lawsuit (see Massot v. Utica First Ins. Co., 36 A.D.3d 499, 499, 828 N.Y.S.2d 342 [1st Dept.2007], lv. denied 8 N.Y.3d 812, 836 N.Y.S.2d 551, 868 N.E.2d 234 [2007] ).
Where an insurance policy requires an insured to provide notice “as soon as practicable” after an occurrence, such notice must be provided within a reasonable time under all the facts and circumstances of each case (Heydt Contr. Corp. v. American Home Assur. Co., 146 A.D.2d 497, 498, 536 N.Y.S.2d 770 [1st Dept.1989], lv. dismissed 74 N.Y.2d 651, 542 N.Y.S.2d 520, 540 N.E.2d 715 [1989] ), and the question of such reasonableness is generally a factual question for a jury (see Jenkins v. Burgos, 99 A.D.2d 217, 219–220, 472 N.Y.S.2d 373 [1st Dept.1984] ).
GONZALEZ, P.J., FRIEDMAN, ANDRIAS, GISHE, KAPNICK, JJ., concur.