Opinion
No. 2011-00373.
May 24, 2011.
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Drexler v Fogelbach, pending in the Supreme Court, Queens County, under index No. 4252/09, the defendant appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated November 30, 2010, which denied its motion for summary judgment declaring that it is not so obligated.
Weber Gallagher Simpson Stapleton Fires Newby LLP, New York, N.Y. (Michael S. Savett of counsel), for appellant.
Stanton Guzman, LLP, Franklin Square, N.Y. (Stacey Rinaldi Guzman and Jack Stanton of counsel), for respondent.
Before: Mastro, J.P., Hall, Lott and Cohen, JJ.
Ordered that the order is affirmed, with costs.
In opposition to the defendant insurer's prima facie showing of entitlement to judgment as a matter of law based upon the plaintiffs five-month delay in reporting the underlying occurrence to it, the plaintiff raised a triable issue of fact as to whether the delay was reasonable, based upon a good faith belief in her nonliability. Therefore, under these circumstances, the Supreme Court properly denied the defendant's motion for summary judgment ( see Bauerschmidt Sons, Inc. v Nova Cos. Co., 69 AD3d 668, 669; R L Richmond Ave. Corp. v Public Serv. Mut. Ins. Co., 56 AD3d 643; St. James Mech., Inc. v Royal Sunalliance, 44 AD3d 1030, 1031; cf. Avery Avery, P.C. v American Ins. Co., 51 AD3d 695).
The defendant's remaining contention is not properly before this Court.