Rochwarger v. National Union Fire Insurance Co. of Pittsburgh

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered February 28, 1992, which denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The distinction between "claims made” and "occurrence” policies controls the issue of coverage in this case, not whether defendant-insurer suffered any prejudice as a result of the short delay in giving notice of the claim (Chas. T. Main, Inc. v Fireman’s Fund Ins. Co., 406 Mass 862, 865, 551 NE2d 28, 30). An insured under a "claims made” policy knows in advance that there is an applicable date that cuts off claims, this being a distinct characteristic of such a policy that directly relates to rate setting (406 Mass, supra, at 864, 551 NE2d, supra, at 29). Nor should defendant be estopped from denying coverage since there was no "termination of coverage” under part 73 of the New York State Insurance Department Regulations (11 NYCRR) triggering the notice requirement, and plaintiffs’ former company renewed the policy. Concur — Murphy, P. J., Carro, Ellerin, Kupferman and Asch, JJ.