875 Forest Ave. Corp. v. Aetna Casualty & Surety Co.

Judgment entered May 23, 1969, declaring defendant-appellant’s disclaimer of liability under its policy of insurance issued to plaintiff-respondeht of no force and effect, unanimously reversed on the law, on the facts, and in the interest of justice, and the ease remanded for a new trial before the same justice, with costs to abide the event. The basis for this action for a declaratory judgment, which would, in effect, negate defendant-appellant insurer’s disclaimer of any duty to plaintiff-respondent insured by reason of late notification, was that the fatal accident to a little girl at plaintiff’s property occurred in such circumstances that no reasonable person could either deem plaintiff responsible or would anticipate that a belated lawsuit for wrongful death would be brought, and that, immediately on commencement of the suit, notice was given. It was incumbent upon plaintiff to establish what these circumstances were to support its claim that there was, as the policy provided, “notice * * * given by * * *" the Insured to the Company * * * as soon as practicable.” The difficulty is that in the truncated and laconic agreed statement of fact on which the controversy was submitted to the court for decision, not a word is found descriptive of the circumstances of the accident. Apparently, discussion off the record never got into the record. In these circumstances, plaintiff should, in the interest of justice, be given the opportunity to supply the palpable defect and establish its ease. (Rushing v. Commercial Cas. Ins. Co., 251 N. Y. 302; Littrell v. Allemania Fire Ins. Co., 224 App. Div. 523.) Concur — Stevens, P. J., Eager, Markewich, Nunez and Tilzer, JJ.