Nationwide Mutual Insurance v. Vivas , 699 N.Y.S.2d 410 ( 1999 )

—Order and judgment (one paper), Supreme Court, New York County (Harold Tompkins, J.), entered on or about April 15, 1998, which granted the application of petitioner insurer Nationwide Mutual Insurance Company to permanently stay arbitration of respondent insured Vivas’s claim for supplementary uninsured motorist benefits, unanimously affirmed, without costs.

In the aftermath of an automobile accident in which she was allegedly injured, respondent Vivas commenced an action to recover for her injuries against the owner of the car in which she was riding at the time of the accident and the owner and driver of the other vehicle involved in the accident. Respondent, as an insured, also filed a claim for supplementary uninsured motorist benefits under a policy issued by petitioner insurer. The subject policy, however, required as a condition of payment of supplementary uninsured motorist benefits that "[i]f the insured * * * brings any lawsuit against any person or organization legally responsible for the use of a motor vehicle involved in the accident, a copy of the summons and complaint or other process served in connection with the lawsuit shall be forwarded immediately to us by the insured or the insured’s legal representative”. As it is clear both that this proviso is devoid of ambiguity and that it was not complied with, petitioner insurer’s application to stay arbitration of respondent’s claim for supplementary uninsured motorist benefits was properly granted. Respondent has oifered no excuse for her failure to comply with the notice provision and “[a]bsent a valid excuse, a failure to satisfy the notice requirement vitiates the policy [citations omitted], and the insurer need not show prejudice before it can assert the defense of noncompliance” (Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 440).

We have reviewed respondent’s remaining arguments and find them to be unavailing. Concur — Rosenberger, J. P., Williams, Tom, Mazzarelli and Buckley, JJ.