January 10, 2005

Matter of AIU Ins. Co. v Henry (2005 NY Slip Op 00144)

Headnote

The court considered the correspondence between the claimant's attorney and the insurance company, as well as the submission of an application for no-fault benefits. The main issue was whether this correspondence provided the insurance company with notice of the claim for uninsured motorist benefits as required by the insurance policy. The court found that the correspondence did not constitute the requisite notice, and the claimant failed to offer a valid excuse for her failure to give the insurance company timely notice. As a result, the Supreme Court properly granted the petition to stay arbitration, and the order was affirmed on appeal. The main holding was that the failure to satisfy the notice requirement specified in the insurance policy vitiates coverage for uninsured motorist benefits.

Reported in New York Official Reports at Matter of AIU Ins. Co. v Henry (2005 NY Slip Op 00144)

Matter of AIU Ins. Co. v Henry

2005 NY Slip Op 00144 [14 AD3d 506]

January 10, 2005

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 16, 2005

In the Matter of AIU Insurance Company et al., Respondents,
v
Mimose Henry, Appellant.

—[*1]

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, Mimose Henry appeals (1) from an order of the Supreme Court, Rockland County (Bergerman, J.), dated April 22, 2003, which granted the petition and permanently stayed the arbitration, and (2), as limited by her brief, from so much of an order of the same court dated October 7, 2003, as, upon reargument, adhered to the prior determination.

Ordered that the appeal from the order dated April 22, 2003, is dismissed, as that order was superseded by the order dated October 7, 2003, made upon reargument; and it is further,

Ordered that the order dated October 7, 2003, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the petitioners.

A claimant seeking uninsured motorist benefits is required to “give notice to his or her insurer within the time limit provided in the insurance policy or within a reasonable time under all the circumstances” as a condition precedent to the insurer’s liability (Matter of Allstate Ins. Co. v Kashkin, 130 AD2d 744, 745 [1987]; see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]; Matter of Eagle Ins. Co. v Garcia, 280 AD2d 476, 477 [2001]; Matter of Nationwide Ins. Co. v Bietsch, 224 AD2d 623 [1996]). Absent a valid excuse, the failure to satisfy the notice requirement [*2]of an insurance policy vitiates coverage (see Matter of Eagle Ins. Co. v Garcia, supra; Matter of Nationwide Ins. Co. v Bietsch, supra; Matter of Allstate Ins. Co. v Kashkin, supra). Contrary to the claimant’s contention, the correspondence between her attorney and the petitioner insurance company, and her submission of an application for no-fault benefits, did not provide the insurance company with the requisite notice of her claim for uninsured motorist benefits (see Matter of Country-Wide Ins. Co. [Eun Kyu Park], 277 AD2d 175 [2000]; Matter of Nationwide Mut. Ins. Co. v Wexler, 276 AD2d 490 [2000]; Matter of Nationwide Ins. Co. v Bietsch, supra at 624). Moreover, the claimant did not offer a valid excuse for her failure to give the insurance company timely notice. Accordingly, the Supreme Court properly granted the petition to stay arbitration. H. Miller, J.P., Krausman, Goldstein and Skelos, JJ., concur.