Fogelbach v. Public Service Mutual Insurance

[1155] In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Drexler v Fogelbach, pending in the Supreme Court, Queens County, under index No. 4252/09, the defendant appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated November 30, 2010, which denied its motion for summary judgment declaring that it is not so obligated. Ordered that the order is affirmed, with costs. In opposition to the defendant insurer’s prima facie showing of entitlement to judgment as a matter of law based upon the plaintiffs five-month delay in reporting the underlying occurrence to it, the plaintiff raised a triable issue of fact as to whether the delay was reasonable, based upon a good faith belief in her nonliability. Therefore, under these circumstances, the Supreme Court properly denied the defendant’s motion for summary judgment (see Bauerschmidt & Sons, Inc. v Nova Cas. Co., 69 AD3d 668, 669 [2010]; R & L Richmond Ave. Corp. v Public Serv. Mut. Ins. Co., 56 AD3d 643 [2008]; St. James Mech., Inc. v Royal & Sunalliance, 44 AD3d 1030, 1031 [2007]; cf. Avery & Avery, P.C. v American Ins. Co., 51 AD3d 695 [2008]). The defendant’s remaining contention is not properly before this Court. Mastro, J.E, Hall, Lott and Cohen, JJ., concur.