How Shim Yu v General Sec. Ins. Co.

How Shim Yu v General Sec. Ins. Co. 2012 NY Slip Op 01346 Decided on February 23, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 23, 2012
Tom, J.P., Saxe, Sweeny, Richter, Manzanet-Daniels, JJ.
6124 117206/04

[*1]How Shim Yu, Plaintiff-Appellant,

v

General Security Insurance Co., etc., Defendant-Respondent.




Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola
(Jonathan A. Dachs of counsel), for appellant.
Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for respondent.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered June 21, 2010, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment, unanimously reversed, on the law, with costs, the motion denied, and the cross motion granted in the principal amount of $501,055, plus interest. The Clerk is directed to enter judgment accordingly.

This is an action pursuant to Insurance Law § 3420(a)(2) by an injured person (plaintiff) against the insurer (defendant) of a tortfeasor (nonparty Lep Keng Corp.), which has not satisfied a judgment against it in plaintiff's favor. It is undisputed that Lep Keng's notice to defendant was late. However, "[a]n insurer's failure to provide notice as soon as is reasonably possible precludes effective disclaimer, even where the policyholder's own notice of the incident to its insurer is untimely" (Matter of New York Cent. Mut. Fire Ins. Co. v Aguirre, 7 NY3d 772, 774 [2006] [internal quotation marks and citation omitted]).

Defendant learned by August 27, 2004, at the latest, that plaintiff served the summons and complaint in the underlying personal injury action on the Secretary of State on December 31, 2001, that the Secretary of State had sent the documents to the address on file for Lep Keng, and that the documents had been returned unclaimed. Thus, defendant was aware by that date "of the grounds for disclaimer of liability or denial of coverage" (id. [internal quotation marks and citation omitted]). Nevertheless, it did not disclaim until July 18, 2007, almost three years later, a delay that is unreasonable as a matter of law (see e.g. First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 66 [2003]). Defendant's contention that it had to wait until the motion court in the underlying action confirmed the Special Referee's finding that Lep Keng had deliberately left [*2]mail unclaimed, is unavailing (see Republic Franklin Ins. Co. v Pistilli, 16 AD3d 477, 479 [2005]).

In light of the above disposition, we do not reach the parties' remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2012

CLERK