Opinion
CA 03-00186
November 21, 2003.
Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered September 5, 2002, which denied the petition seeking a permanent stay of arbitration and granted respondent's cross motion to dismiss the petition.
BOUVIER, O'CONNOR, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR PETITIONER-APPELLANT.
LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (COURTNEY C. GENCO OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: GREEN, J.P., PINE, WISNER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the cross motion is denied and the petition is granted.
Memorandum:
Respondent was injured in an automobile accident on May 24, 1998, but did not give petitioner notice of his supplemental uninsured motorist (SUM) claim until June 28, 2000. The insurance policy issued by petitioner to respondent required him to give notice of a SUM claim "[a]s soon as practicable," i.e., "with reasonable promptness after [he] knew or should reasonably have known that the tortfeasor was underinsured" ( Matter of Metropolitan Prop. Cas. Ins. Co. v. Mancuso, 93 N.Y.2d 487, 495). Petitioner sought a permanent stay of arbitration of respondent's SUM claim, and respondent cross-moved to dismiss the petition. We conclude that Supreme Court should have granted the petition. Respondent failed to meet his burden of establishing a reasonable excuse for the more than two-year delay in giving notice ( see Matter of State Farm Mut. Auto. Ins. Cos. [Proper], 300 A.D.2d 1095, 1095-1096; Matter of Nationwide Ins. Co. v. Montopoli, 262 A.D.2d 647). "The nature and extent of respondent's injury did not change from the time of the accident until the time when respondent provided petitioner with notice of the SUM claim" ( Matter of New York Cent. Mut. Fire Ins. Co. [Moore], 280 A.D.2d 923, 924; see Proper, 300 A.D.2d at 1096; cf. Matter of Travelers Ins. Co. [DeLosh], 249 A.D.2d 924, 925). Nor did respondent demonstrate that he acted with due diligence in attempting to determine the insurance coverage of the tortfeasor ( see Proper, 300 A.D.2d at 1096; Moore, 280 A.D.2d at 924). Respondent retained his attorney one month after the accident, but the record "does not reflect the efforts of that attorney, if any, to obtain the information necessary for respondent to make a claim for SUM benefits"at any time before May or June 2000 ( Matter of Hartford Cas. Ins. Co. [Brody], 278 A.D.2d 830, 830-831; cf. Matter of State Farm Mut. Auto. Ins. Co. [Hernandez], 275 A.D.2d 989, 990), despite the fact that "[r]espondent was aware of the identity of the tortfeasor on the day of the accident" ( Moore, 280 A.D.2d at 924). We therefore reverse the order, deny respondent's cross motion, and grant the petition seeking a permanent stay of arbitration. In view of our determination, there is no need to address petitioner's remaining contentions.