21 Misc. 2d 1079 | N.Y. Sup. Ct. | 1959
This is an action under section 167 of the Insurance Law against an insurer, under a family automobile policy, by a person injured by the defendant’s assured who has recovered a judgment which has not been paid for more than 30 days. Defendant contends that the plaintiff’s notice to it of the accident ivas not timely. Plaintiff relies on section 167 (subd. 1, par. [d]) of the Insurance Law which allows the injured party to prove that he gave notice as soon as was “ reasonably possible
On February 21, 1958 the insurer (defendant herein) requested a copy of the summons and complaint. Defendant asked for an extension of time until March 25, 1958 to appear and answer and obtain a stipulation to that effect from plaintiff. Defendant contends that since plaintiff could have obtained the name of the insurer at any time from the Motor Vehicle Bureau that plaintiff did not give notice as soon as was reasonably possible.
Defendant relies on a number of cases which, for the most part, involve assureds seeking to recover who were barred by delays of as little as 10 days. One case involves the assured’s failure to give written notice as was required of him (Bazar v. Great Amer. Ind. Co., 306 N. Y. 481); three cases involve unexcused delays (Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127; Rushing v. Commercial Cas. Ins. Co., 251 N. Y. 303; Vanderbilt v. Indemnity Ins. Co., 265 App. Div. 495); in one case the assured was barred by his own neglect (Reina v. United States Cas. Co., 228 App. Div. 108, affd. 256 N. Y. 537); in one case where the assured was barred its excuse was that it did not believe the injury was serious and did not think suit would be
Whether or not the notice was given as soon as reasonably possible is a question of fact (Lauritano v. American Fid. Fire Ins. Co., 3 A D 2d 564, affd. 4 N Y 2d 1028; Gluck v. London & Lancashire Ind. Co., 2 A D 2d 751, affd. 2 N Y 2d 953) and a more liberal standard is applied to the injured party suing under section 167 of the Insurance Law than is applied to the assured suing under the policy (Marcus v. London & Lancashire Ind. Co., 6 A D 2d 702, affd. 5 N Y 2d 961). To hold that the injured plaintiff must go to the trouble of notifying the defendant’s insurance company even before suit is commenced and before plaintiff knows that the insurer is disclaiming (which would be the effect of the decision sought by this defendant) would place an unconscionable burden on plaintiffs in personal injury actions and completely defeat the provisions of section 167 of the Insurance Law.
From all of the facts and circumstances I find that plaintiff has sustained the burden of proving that the notice was given as soon as was reasonably possible (Insurance Law, § 167, subd. Í, par. [d]).
Plaintiff contends also that even if notice was not timely the defendant insurer has waived the defect by appearing and answering and by failing to properly reserve its rights to disclaim under the policy. The reservation of right must be assented to by the insured (Weatherwax v. Royal Ind. Co., 250 N. Y. 281, supra) but here there was no assent at the time of
The defendant also asserts that the vehicle in question was not covered by the policy. The assured’s policy covered a 1953 Ford. The car he was driving and owned at the time of the accident was a 1957 Ford. The controlling policy provision relating to substitution of vehicles is contained in Condition No. 2 of the policy and provides that the company shall be notified of substitutions “ during the policy period”. The policy expired on January 3, 1958, long after the accident. The law is clear that the vehicle in question was covered by the policy (Melendez v. General Acc. Fire & Life Assur. Corp., 189 Misc. 392, affd. 273 App. Div. 960).
Judgment for plaintiff in the sum of $10,229, with interest from January 8, 1959, and costs of this action. The foregoing constitutes the decision of this court pursuant to section 440 of the Civil Practice Act. The parties may call for their exhibits at the office of the Clerk of Special and Trial Term, Part XVI.
Settle judgment.