Colon v New York Mut. Fire Ins. Co.
Annotate this CaseDecided on May 23, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
2005-1458 Q C
ELIZABETH COLON, Appellant,
against
NEW YORK MUTUAL FIRE INSURANCE COMPANY, Respondent.
Appeal by plaintiff from an order of the Civil Court, Queens County (J. Golia, J.), entered July 20, 2004, denying her motion for summary judgment.
Order unanimously reversed without costs and plaintiff's motion for summary judgment granted.
On her motion for summary judgment in this action to enforce a judgment pursuant to Insurance Law § 3420 (a) (2), plaintiff, who was injured in a 1998 automobile accident with a vehicle driven by defendant's insureds, established entitlement to judgment as a matter of law against the defendant insurance carrier.
Insurance Law § 3420 [d] provides: "If under a liability policy delivered or issued for delivery in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant" (emphasis supplied).
Pursuant to this provision, injured claimants have an independent right to seek coverage [*2]under a policy of insurance regardless of whether the actual insureds have complied with its coverage provisions (General Acc. Ins. Group v Cirucci, 46 NY2d 862 [1979]; Lauritano v American Fidelity Fire Ins. Co., 3 AD2d 564 [1958], affd 4 NY2d 1028 [1958]). Thus, in order to disclaim coverage as to plaintiff, who independently claimed entitlement to recover the judgment entered against defendant's insureds, defendant was required to issue a notice of disclaimer of coverage directly to plaintiff, citing grounds applicable to her, not simply to the insureds (Insurance Law § 3420 [d]; General Acc. Ins. Group v Cirucci, 46 NY2d 862, supra).
We note that the recent Court of Appeals decision in Argo Corp. v Greater NY Mut. Ins. Co., 4 NY3d 332 [insurer permitted to disclaim coverage on ground of late notice without a showing of prejudice]) does not require a different result, as the defendant carrier herein did not disclaim directly to plaintiff herein, who had provided the notice, within a reasonable time of receiving notice of the accident (see General Acc. Ins. Group v Cirucci, 46 NY2d 862, supra).
The present matter is distinguishable from cases holding that once coverage is disclaimed as to the carrier's own insureds due to late notice of claim, the carrier has no further duty to disclaim as to a third-party claimant who subsequently notifies it of the accident or occurrence (see e.g. Travelers Indem. Co. v Worthy, 281 AD2d 411 [2001]; Agway Ins. v Alvarez, 258 AD2d 487 [1999]; Massachusetts Bay Ins. Co. v Flood, 128 AD2d 683 [1987]). Here, according to all of the evidence before the court below upon the motion, plaintiff was the first party to give any kind of notice, timely or not, to the defendant carrier of the underlying accident, and thus defendant's disclaimer of coverage, directed to its insureds for their failure to timely notify it, was not effective as to plaintiff (see Carter v Mount Vernon Fire Ins. Co., 188 AD2d 430 [1992]). It is clear from the subsequent proceedings that defendant was put on sufficient notice of the accident upon receiving these documents to trigger its duty to issue a disclaimer of coverage as to plaintiff herein, and not simply as to its own insureds, who, according to defendant, never gave it notice of the accident at all (Insurance Law § 3420 [d]; General Accid. Ins. Group v Cirucci, 46 NY2d 862, supra; Security Mut. Ins. Co. of NY v Acker-Fitzsimons Corp., 31 NY2d 436 [1972]).
That defendant could have properly disclaimed coverage as to plaintiff is beyond cavil (4 NY3d 332, supra). By all accounts, defendant's first notice of the underlying accident was given some four years after the fact, in or about October 2000, and came in the form of a copy of a default judgment entered against its insureds (while defendant has denied proper service of this document as a condition precedent to an enforcement action, its conduct indicates that it did receive it at that time). However, as noted, such a disclaimer had to be directed to plaintiff herein, had to cite grounds of disclaimer applicable to her, and had to be issued in a timely manner (see General Acc. Ins. Group v Cirucci, 46 NY2d at 864). Although plaintiff's notice was unreasonably late as a matter of law (see e.g. Eagle Ins. Co. v Zuckerman, 301 AD2d 493 [2003]), defendant then failed to disclaim as to plaintiff until November 3, 2003. This unexplained delay was itself unreasonable as a matter of law, and waived plaintiff's own late notice (see General Acc. Ins. Group v Cirucci, 46 NY2d at 864; Pawley Interior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d 595 [2004]).
Plaintiff correctly contends that the present action was brought within the appropriate statute of limitations. Pursuant to Insurance Law § 3420 (a) (2) and CPLR 214 (2), plaintiff's cause of action does not accrue until 30 days after the judgment with notice of entry is served [*3](see Roldan v Allstate Ins. Co., 149 AD2d 20, 36 [1989]). Even if service of the judgment were properly effected for this purpose on October 27, 2000 (a question upon which it is not necessary to pass [see Colon v NY Cent. Mut. Fire Ins.
Co., 2003 NY Slip Op 51372(U) (App Term, 2d &11th Jud Dists)]), the statute of limitations would not run until November 26, 2003. As the action was commenced on November 20, 2003, it was timely within this scenario.
In light of this disposition, plaintiff's remaining contentions need not be reached.
Decision Date: May 23, 2005
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