24 Fifth Owners, Inc. v. Sirius America Insurance , 998 N.Y.S.2d 632 ( 2015 )

24 Fifth Owners, Inc. v Sirius Am. Ins. Co. (2015 NY Slip Op 00692)

24 Fifth Owners, Inc. v Sirius Am. Ins. Co.

2015 NY Slip Op 00692

Decided on January 29, 2015

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 January 29, 2015
Gonzalez, P.J., Friedman, Andrias, Gishe, Kapnick, JJ.

14071 114280/10

[*1] 24 Fifth Owners, Inc., et al, Plaintiffs-Appellants,

v

Sirius America Insurance Company now known as Delos Insurance Company, Defendant-Respondent, Illinois Union Insurance Company, et al., Defendants.

Brill & Associates, P.C., New York (Corey M. Reichardt of counsel), for appellants.

Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for respondent.

Order, Supreme Court, New York County (Carol Robinson Edmead, J.), entered June 14, 2013, which denied plaintiffs' motion for summary judgment, unanimously affirmed, with costs.

Plaintiffs' claim that Sirius's disclaimer letter did not specify that the late notice defense was based on the time that had elapsed between 24 Fifth Owners, Inc.'s receipt of the underlying complaint and the tender to Sirius, even considered for the first time on appeal as a purely legal argument (cf. Titova v D'Nodal, 117 AD3d 431, 431 [1st Dept 2014]), is unavailing, as the letter, which also referenced the policy condition relied upon, sufficiently apprised plaintiffs that notice was considered untimely relative to either event - the date of occurrence or of receipt of the lawsuit (see Massot v Utica First Ins. Co., 36 AD3d 499, 499 [1st Dept 2007], lv denied 8 NY3d 812 [2007]).

Where an insurance policy requires an insured to provide notice "as soon as practicable" after an occurrence, such notice must be provided within a reasonable time under all the facts and circumstances of each case (Heydt Contr. Corp. v American Home Assur. Co., 146 AD2d 497, [*2]498 [1st Dept 1989], lv dismissed 74 NY2d 651 [1989]), and the question of such reasonableness is generally a factual question for a jury (see Jenkins v Burgos, 99 AD2d 217, 219-220 [1st Dept 1984]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2015

CLERK