632 N.Y.S.2d 17 | N.Y. App. Div. | 1995
—Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about October 18, 1994, which, on the parties’ respective motions for summary judgment in a declaratory judgment concerning whether defendant insurers are obligated to defend and indemnify plaintiff warehouse, declared that defendants are not so obligated, unanimously affirmed, with costs.
Plaintiffs obligation to give defendant written notice of "every loss, damage or occurrence which may give rise to a claim under this policy” is not rendered ambiguous by the policy provision authorizing plaintiff to itself adjust any claim for less than $750. Documentary evidence established plaintiffs knowledge of the loss as early as 41/2 years before it gave notice, and an intervening event some two years before revealed that the loss was continuing. Plaintiffs excuse that it had no reason to believe that its exposure was more than $750 until its customer actually provided it with a statement of loss, and that it had good reason to believe that a potential exposure of less than $750 was exempt from the policy’s notice requirement, is insufficient as a matter of law to excuse the delay (see, Heydt Contr. Corp. v American Home Assur. Co., 146 AD2d 497, 499, Iv dismissed 74 NY2d 651). Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Tom, JJ.