D'Aloia v. Travelers Insurance

—In an action for a judgment declaring the rights of the parties with respect to an insurance policy, the defendant Travelers Insurance Company appeals from a judgment of the Supreme Court, Kings County (Krausman, J.), entered October 2, 1992, which, after a nonjury trial, is in favor of the plaintiffs declaring that the appellant has an obligation to defend and indemnify the plaintiffs with respect to a certain action to recover damages for personal injuries pending against them. Ordered that the judgment is affirmed, with costs. "When the facts of an occurrence are such that an insured acting in good faith would not reasonably believe that liability on his part will result, notice of the occurrence given by the insured to the insurer is given 'as soon as practicable’ if given promptly after the insured receives notice that a claim against him will in fact be made” (Merchants Mut. Ins. Co. v Hoffman, 56 NY2d 799, 801; see also, E.T. Nutrition v Central Mut. Ins. Co., 201 AD2d 451; Winstead v Uniondale Union Free School Dist., 170 AD2d 500, 503). The Supreme Court concluded that under the circumstances of this case, notice was timely given to the defendant. The court’s determination is supported by the record, and we find no basis for disturbing it. In response to our dissenting colleagues’ concerns regarding the state of the record, we note that the underlying facts are not in dispute, and while there is certainly disagreement between the parties as to whether the decision of the Supreme Court was correct, there is no argument before us that it was improper for the Supreme Court to base its determination on the record before it. The parties charted their own litigation course (see, e.g., Mitchell v New York Hosp., 61 NY2d 208, 215), and we do not share our dissenting colleagues’ belief that there was no evidence before the Supreme Court to support its determination. Miller, Copertino and Altman, JJ., concur.