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Plaintiff Seeks Declaratory Judgement Based on Failure to Give Timely Notice of Insurance Claim

I was the only who witnessed the fall. She tripped on the hoses and fell forward on her hands there was no sign of injury and I helped her up. She walked away without asking for an ambulance. About an hour later she came back and asked for my name. At that time she told me that she had injured her arm and had seen a doctor. After she left I went out and took pictures of the hoses and the cones. After not hearing anything from the woman, I thought she was not going to make a claim, and did not think it was necessary to report it to my broker. Plaintiff disclaimed coverage by letter dated June 16, 2008, alleging that respondent failed to give timely notice of the claim. Plaintiff alleged that T&S was aware of the occurrence giving rise to the underlying action on about October 23, 2007, yet failed to notify them until May 21, 2008.

The issue in this construction case is whether plaintiff’s motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent on the grounds that it failed to provide timely notice of the claim in violation of the policy terms should be granted.

CPLR ยง 3212(b) requires that for a court to grant summary judgment, the court must determine if the movant’s papers justify holding, as a matter of law, “that the cause of action or defense has no merit.” It is well settled that the remedy of summary judgment, although a drastic one, is appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. It is incumbent upon the moving party to make a prima facie showing based on sufficient evidence to warrant the court to find movant’s entitlement to judgment as a matter of law. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment should be denied when, based upon the evidence presented, there is any significant doubt as to the existence of a triable issue of fact. When there is no genuine medical issue to be resolved at trial, the case should be summarily decided.

The record shows that T&S should have reasonably anticipated that a claim would be asserted. The Vice-president saw complainant fall in front of his premises; complainant came back an hour later to request insurance information and received a business card from the purported owner after claiming that she had just come from seeing a doctor, and was in pain as a result of the fall. The witnessing of the fall by the Vice-president and the statements of the complainant made immediately after the accident and the statements made an hour later when she returned, should have reasonably alerted the insured that a claim was possible.

The insured claims that it reasonably believed in its non-liability with respect to the alleged incident, because it was not involved in any activities at the loss location and were not responsible for any alleged back injury, and therefore had no awareness of any liability with respect to Wiesel’s accident. However, the relevant legal standard is “not whether the insured believes he will ultimately be found liable for the injury, but whether he has a reasonable basis for a belief that no clam will be asserted against him”.

This Court agrees with Tower that notice of the occurrence was untimely as a matter of law. Tower established that its insured, respondent failed to report the incident for nearly seven months. In response, respondent failed to demonstrate that a reasonably prudent person, upon learning of the incident, would have a good faith, objective basis for believing that litigation would not be commenced. Having failed to do so, the insured is entitled to summary judgment in its favor declaring that it had no duty to defend or indemnify respondent.

Accordingly, the court held that the motion of plaintiff for summary judgment on its first cause of action seeking a declaration that it is not obliged to provide a defense to, and provide coverage for, the respondent in the personal injury action is granted; and it is further adjudged and declared that plaintiff herein is not obliged to provide a defense to, and provide coverage for, the respondent in the said action pending in Kings County. It is further ordered that the branch of plaintiff’s motion for a default judgment against the other defendants in this action is rendered moot.

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