Opinion
01 C 1026
August 28, 2002
Plaintiff, Smurfit Newsprint, Inc. ("Smurfit"), has moved for leave to cite supplemental authority and in light of this supplemental authority, to reconsider the dismissal of Count I of their complaint. Specifically, Smurfit wishes to cite the recent decision from the New York Court of Appeals, Brandon v. Nationwide Mutual Insurance Co. for the proposition that the limited nature of the "no prejudice" rule has been reinforced and that the "no prejudice" rule has been acknowledged as a distinctly minority view. 97 N.Y.2d 491 (2002). Smurfit argues that in light of this decision, the "no prejudice" rule does not apply in this case and therefore, my prior dismissal of Count I should be vacated.
Previously, relying on American Home Assoc. Co. v. International Ins. (.t, 90 N.Y.2d 433 (1997), I stated that in light of the court's reasoning in that opinion, "I a m persuaded that the Court of Appeals would decide that notice is a condition precedent to indemnification (for any claim) in this contract." I held that Smurfit's failure to give timely written notice of the union's claim barred recovery under New York's "no prejudice" rule. Now, Smurfit asserts that in light of the Brandon decision, my basis for dismissal no longer exists.
I asked the parties to brief the question of whether, based on the practices of the New York courts, the Brandon decision indicates that a change in the law is on the horizon. Since neither party addressed this question in their briefs, I conducted an independent investigation to determine the significance of the Brandon decision, and based on that investigation, I have concluded that Brandon is at most a possible straw in the wind. Thus, I am denying Smurfit's motion to cite supplemental authority and to reconsider the dismissal of Count I.