Aponte v Government Empls. Ins. Co.

Aponte v Government Empls. Ins. Co. 2012 NY Slip Op 00903 Decided on February 9, 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 9, 2012
Tom, J.P., Sweeny, Acosta, Renwick, Román, JJ.
6762 301907/09

[*1]Pablo O. Aponte, Plaintiff-Respondent,

v

Government Employees Insurance Company, Defendant-Appellant, Allstate Insurance Company, Defendant.




The McDonough Law Firm, L.L.P., New Rochelle (Howard S.
Jacobowitz of counsel), for appellant.
Levine & Gilbert, New York (Richard Gilbert of counsel), for
respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 25, 2011, which, to the extent appealed from as limited by the briefs, denied defendant Government Employees Insurance Company's (GEICO) motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against GEICO.

GEICO made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence of plaintiff's 13-month delay in notifying it of the incident with the letter carrier
(see e.g. Tower Ins. Co. of N.Y. v Classon Hgts., LLC, 82 AD3d 632, 634 [2011]). Plaintiff's contention that he had a reasonable excuse for failing to give timely notice because he acted in self-defense and did not think the letter carrier "would have the audacity to sue him," failed to raise a triable issue of fact (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 744 [2005]; Tower Ins. Co., 82 AD3d at 634-635). Plaintiff's purported belief in nonliability [*2]was unreasonable as a matter of law, given that the police arrested him, not the letter carrier, for the incident and that he was indicted in federal court for assaulting the letter carrier.

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

ENTERED: FEBRUARY 9, 2012

CLERK