207 Misc. 471 | N.Y. Sup. Ct. | 1954
Plaintiff moves for a new trial upon the grounds that error was committed in ruling upon the law and that further error was committed in the court’s failure to submit to the jury-questions of fact.
The action is predicated upon the disclaimer by the defendant of its obligations under an automobile liability policy issued to one Bennie Lieberman, against whom the plaintiff obtained a judgment of $13,000. The basis of the disclaimer is that the assured failed to give the insurance company notice as soon as possible, as required under the terms of the policy.
The accident upon which plaintiff’s claim is founded occurred on October 24, 1947. The injured person was hurt by reason of his tripping over a fuel oil hose stretched from the assured’s truck across the sidewalk to fill box in the course of delivery of fuel. It is conceded that the assured was fully aware of the accident and that he did not notify the insurance company thereof until March 10 or 11, 1948, when he turned over to it the
The plaintiff further urges that there has been a waiver of the rights of the company to disclaim by reason of the fact that the disclaimer did not take place until twelve days after the company received the summons and complaint. In the opinion of the court no issue of fact exists here which can justify a jury in finding that there was any waiver on the company’s part by its acts and conduct and in its investigation of the case. Certainly the positive reservation of the company’s rights within three days after it obtained knowledge of the facts of the accident and the ultimate disclaimer within five days thereafter cannot be construed as a waiver of its rights under the terms of the policy.
It is now urged in effect that even if the assured failed to give
From the evidence it appears that the accident occurred on October 24, 1947, and that the attorneys for the plaintiff herein forwarded a claim letter to the assured in November, 1947; the assured then called the attorneys for the plaintiff and advised that he was not covered for the accident; on March 8, 1948, a summons and complaint was served by the plaintiff on the assured, who then turned it over to his broker, who in turn mailed it to the defendant’s agent.
Although paragraph (d) of subdivision 1 of section 167 provides that a claim will not be invalidated “ if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible ”, the evidence adduced at the trial is insufficient, as a matter of law, to show that the delay in the giving of such notice was reasonable under the circumstances.
The motion for a new trial is denied.