Wilner v Mt. Hawley Ins. Co.
Annotate this CaseDecided on December 31, 2013
Supreme Court, Queens County
Rywa Wilner, Plaintiff,
against
Mt. Hawley Insurance Company, Defendant.
7106/12
Bernice D. Siegal, J.
The following papers numbered 1 to 12 read on this motion for an order pursuant to CPLR §3212 compelling the defendant to assume the defense and all related costs, expenses and attorneys fees for the actions entitled "Carlos Vega vs. Rywa Wilner" and "Bernard Reyes vs. Rywa Wilner"; (2) setting the matter down to determine what costs, expenses and attorney fees the plaintiff is entitled to as a result of this action; and (3) delaying the requirement for the plaintiff to serve and file a note of issue and certificate of readiness until such time as this court compels such filing.
PAPERS
NUMBERED
Notice of Motion - Affidavits-Exhibits..................................1 - 4
Notice of Cross-Motion- Memorandum of Law....................5 - 9
Reply Affirmation..................................................................10 - 12
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Plaintiff, Rywa Wilner ("Plaintiff" or "Rywa"), moves for an Order pursuant to CPLR §3212 compelling the defendant to assume the defense and all related costs, expenses and attorneys fees for the actions entitled "Carlos Vega vs. Rywa Wilner" and "Bernard Reyes vs. Rywa Wilner." Defendant, Mt. Hawley Insurance Company ("Defendant" or "Mt. Hawley") cross-moves for summary judgment declaring that Mt. Hawley has no obligation to defend or indemnify Plaintiff. For the reasons more fully set forth below, in light of the failure of Plaintiff to provide timely notice or a reasonable excuse for such late notice, Plaintiff's motion is denied and Defendant's cross motion for summary judgement, finding as a matter of law that Defendant has no obligation to defend or [*2]indemnify Plaintiff for the two underlying actions.
Facts
Rywa has been the owner of the buildings located at 119-14 Union Turnpike ("119-14") and 16-16 Summerfield St. ("16-16") in Queens since the 1980's. Rywa's two sons, Michael Wilner and Harold Wilner ("Harold"), jointly carried out the day to day management of the family business until Harold passed away on November 16, 2009. Harold's responsibilities included procurement of insurance and handling of liability claims. Rywa was not involved in the day to day operations.
The within action involves two policies issued by Mt. Hawley with respect to the subject properties. On February 23, 2008, Carlos Vega ("Vega") was allegedly injured inside the building located at 119-14. On July 15, 2008, Vega commenced a negligence action as against Joseph Wilner only, which resulted in a default judgment. Mt. Hawley was not provided with notice until May 21, 2009, nearly a year following the commencement of the original action, and almost one and one half years after the alleged incident. On June 2, 2009, Mt. Hawley issued a disclaimer of coverage by letter to Harry upon the grounds that it failed to receive timely notice of the occurrence and that Joseph Wilner was not named on the policy. On November 12, 2009, Vega commenced a second negligence action, this time against Rywa, Harold, and CY & RY Corp. A subsequent disclaimer was issued on January 11, 2010 upon receipt of the "second" summons reiterating that Mt. Hawley has previously disclaimed against all insured by way of the June 2, 2009 letter.
On July 2, 2008, Bernardo Reyes ("Reyes") allegedly fell on the sidewalk located at the premises "16-16." On August 29, 2008, Reyes commenced a negligence action against Sarug and on December 17, 2008, Reyes filed an amended complaint to add H. Wilner Realty Management LLC as a defendant, which was served upon Harry on December 31, 2008. Mt. Hawley was first provided notice of the accident on May 21, 2009 by way of a copy of the Default Judgment Order against Joseph Wilner. On May 27, 2009, Mt. Hawley issued a disclaimer of coverage.
The Mt. Hawley policy [FN1] then in effect provides that in the event of an occurrence, Plaintiff was required to notify Mt. Hawley "as soon as practicable" and "immediately send (Mt. Hawley) copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit."
On March 22, 2010, counsel for the Wilners issued a letter arguing that Harold Wilner's alleged physical and mental health was the reason for their failure to provide Mt. Hawley with timely notice. Specifically, Plaintiff argues that Harold suffered from high cholesterol.
Discussion
The court will first address Mt. Hawley's cross-motion for summary judgment.
Where, as here, "an insurance requires policy that notice of an occurrence [or suit] be given as soon as practicable, such notice must be given to the insurer within a reasonable period of time in view of all the circumstances." (Ortiz v. Fage USA Corp., 105 AD3d 720, 721 [2nd Dept 2013]; see also Nabutovsky v. Burlington Ins. Co., 81 AD3d 615 [2nd Dept 2012].) "The insured's failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract." ( Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d [*3]742 at 743[2005]; Gershow Recycling Corp. v. Transcontinental Ins. Co., 22 AD3d 460 [2nd Dept 2005][holding that a 5 month delay is unreasonable].) However, while courts have recognized certain excuses for failing to timely provide notice, "the insured bears the burden of establishing the reasonableness of the proffered excuse." (Great Canal Realty Corp. at 744; McGovern-Barbash Assoc., LLC v Everest Natl. Ins. Co., 79 AD3d 981 [2nd Dept 2010].) Herein, the Plaintiff has failed to meet that burden.
Plaintiff contends that it was Harold's failing physical and mental health that caused the notices to be issued untimely. However, Michael Wilner testified at his deposition that he did not perceive any physical condition that would interfere with Harold's running of the business (Tr at 46, lines 13-18,; at 50, lines 14-20) and that Harold's was playing in a band the day he died (Tr. 45, lines 21 -25; 46, lines 1-12). Significantly, Plaintiff failed to provide any documentation in support of her contention that Harold was not competent during all relevant times.
Plaintiff cites to Allstate Ins. Co. Alford, wherein the court excused a woman's failure to notify her insurer timely because she was elderly and confined to a wheelchair. (Allstate Ins. Co. v Alford, 14 AD2d 650 [3rd Dept 1961].) However, the facts in Allstate are not comparable to the facts of the within action. Here, Harold was playing in a band up and until his death and his own brother testified that Harold went to work everyday and was not suffering from any condition that would prevent him from running his business. Furthermore, Plaintiff failed to provide any documentation supporting her claim of Harold's disabilities. Finally, Plaintiff and Michael Wilner authorized Harold to handle matters relating to Insurance and had they perceived a decline in his ability to handle those matters the time to address that issue was in 2008/2009 and not in 2012.
Accordingly, Plaintiff failed to raise a triable issue of fact with respect to Defendant's cross-motion.
Conclusion
For the reasons set forth above, Defendant's cross motion for summary judgment is granted and it is Ordered that Mt. Hawley Insurance Company is not obligated to defend or indemnify the Plaintiff in the underlying actions. Accordingly, Plaintiff's motion is denied in its entirety.
Dated:December 31, 2013___________________________
Bernice D. Siegal, J. S. C.
Footnotes
Footnote 1:The court notes that Plaintiff annexed a policy not in effect at the time of the underlying incidents, however, as Defendant provided the policy in effect at all relevant periods, the court disregarded Plaintiff's error.
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