Opinion
December 23, 1958
Appeal from the City Court of the City of New York, Kings County, MILTON M. WECHT, J.
E. Edan Spencer for appellant.
Spar, Schlem Burroughs ( Martin A. Burroughs of counsel), for respondents.
The unexcused delay of at least 35 days in giving notice to defendant after plaintiffs had become fully aware that the claim being asserted against them was within the coverage of defendant's policy was, under the circumstances presented herein, a breach of condition as a matter of law, and fatal to the plaintiffs' cause of action ( Deso v. London Lancashire Ind. Co. of America, 3 N.Y.2d 127; Vanderbilt v. Indemnity Ins. Co. of North America, 265 App. Div. 495).
The order dated March 13, 1958 granting plaintiffs' motion for summary judgment should be unanimously reversed upon the law and facts, with $10 costs and taxable disbursements to defendant, motion denied and summary judgment granted in favor of defendant dismissing the complaint. Appeals from orders dated June 26, 1957 and February 4, 1958, dismissed. These orders were superseded by the order of March 13, 1958.
Concur — PETTE, DI GIOVANNA and BROWN, JJ.
Order reversed, etc.