Plaintiff, Tower Insurance Company of New York ("Tower") moves pursuant to CPLR 3212 for a judgment that it is not obligated to defend and indemnify Jaison John Realty Corp. and Matthew John (collectively "John") in an underlying personal injury action captioned Elizabeth Dias v. Jaison Realty Corp. and Matthew John, ("the underlying action") that is pending in the Westchester County Supreme Court. Tower also seeks summary judgment against defendant Elisabeth Dias for the relief demanded in the complaint.

John cross moves pursuant to CPLR 3212 for a judgment that Tower is obligated to defend and indemnify them in the Dias action. Dias cross moves pursuant to CPLR 3212 for summary judgment in her favor.

BACKGROUND

In the underlying action, Dias seeks damages for personal injuries she allegedly sustained on September 17, 2006, when she [*2]fell while descending the staircase at the entrance of the apartment building where she lives (the premises"). Defendant Jaison John Realty Corp. owns the apartment building and Matthew John is Jaison John Corp.'s president and primary shareholder.

It is undisputed that following the accident a passerby called 911 (2/7/08 Kotlyarsky Aff, Ex. A, Tr. p. 72 ^[FN1]) and that a paramedic/police officer was the first responder to the scene of the accident. When the paramedics arrived, the police officer cut off a piece of the staircase's railing in order to extricate Dias. (Tr. p. 76-77) Thereafter, Dias was transported by ambulance to a hospital emergency room where she was treated and released.

Matthew John alleges that when he arrived at premises in the afternoon of September 17, 2006, he noticed that the railing on the front steps had been removed and he called the police to report the problem. John states that later that afternoon he received a telephone call from someone who identified himself as a member of the Yonkers Police Department who explained that he had cut the handrail down because someone named Dias had fallen on the steps. (John Aff., para. 9) Dias testified (Tr. p. 129) that she called John from the hospital to tell him about the accident and he stated that he already knew about it. John denies speaking to Diaz from the hospital and states that he attempted to call Dias that evening to find out if she was the person who had fallen but that he was unable to reach her (John Aff., para.10).

John claims that he saw Dias on September 18, 2006 and several times thereafter and that, although she had been a vocal complainer regarding the building in the past, she never mentioned that she had fallen on the front steps and had been injured. John states that he never received a copy of the police report or the December 20, 2006 letter from Dias's attorney which stated that the attorney had been retained to prosecute a personal injury claim. (Sanders Aff., Ex. 4) John claims that he was unaware that Dias had been injured until January, 2007 when he received a copy of the summons and complaint in the underlying action which he immediately forwarded to Tower.

On February 16, 2007, Tower disclaimed coverage based on John's failure to timely notify Tower of the occurrence. Tower reiterated its disclaimer in a June 7, 2007 letter after receiving a letter from John explaining that he did not report the incident on the date of occurrence because he believed Diaz was making a false claim.

THE POLICY

The insurance policy at issue states in pertinent part:

[*3]2. Duties in the Event of Occurrence, Offense, Claim or Suit

a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible the notice should include:

(1) How, when and where the "occurrence" or offense took place;

(2) The names and addresses of any injured persons and witnesses; and

(3) The nature and location of any injury or damage arising out of the occurrence.

b. If a claim is made or a "suit" is brought against any insured, you must:

(1) Immediately record the specifics of the claim or "suit" and the date received; and

(2) Notify us as soon as practicable.

You must see to it that we receive written notice of the claim or "suit" as soon as practicable.

Aff. Of Lowell Aptman, Ex. 1, Section IV.

CONTENTIONS

In support of the motion for a declaratory judgment that it has no obligation to defend or indemnify the defendants, Tower contends that John was on notice, on September 17, 2006, that an accident had occurred on the front steps of the apartment building that he owned and that he breached his duty, under the policy, to provide Tower with prompt notice of the occurrence. Tower claims that, under the circumstances, (i.e; a call from the police ^[FN2], his knowledge that someone named Dias had fallen on the premises and the missing railing) it was unreasonable for John to assume that no claim would be asserted against him and that, at the very least, John's admitted knowledge triggered a duty to investigate the incident. Tower contends that John's failure to investigate was unreasonable as a matter of law. [*4]

In addition, in support of its motion for a judgment against Dias, Tower asserts that Dias failed to exercise her independent right, under the Insurance Law, to promptly notify Tower of her claim against John. Tower claims that she did not act diligently in attempting to discover the name of John's insurer and that she never provided Tower with notice of the claim.

In opposition to Tower's motion, and in support of their cross motion, John claims that given Dias's lack of complaints about an accident and Matthew John's statement that Dias did not appear to be injured, they reasonably believed that no claim would be asserted against them and that, therefore, they notified Tower about the claim as soon as practicable under the circumstances.

In support of the cross motion to dismiss the complaint against her, Dias argues that there is no privity of contract between Dias and Tower, the complaint does not allege that Dias breached any duty and it fails to state a cause of action against Dias. Moreover, she contends that, pursuant to Section 3420 of the Insurance law, she provided Tower with timely notice of her claim.

DISCUSSION

On a motion for summary judgment, the proponent of the motion must make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact. (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557,562 [1980]) The motion must be supported by an "affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions." (CPLR 3212[b])

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require trial of any issue of fact (CPLR 3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or tender an acceptable excuse for the failure to do so. (Vermette v. Kenworth Truck Co., 68 NY2d 714 (1986); Zuckerman v. City of New York, supra at 560) Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient. (Alvord and Swift v. Steward M. Muller Constr. Co., 46 NY2d 276 [1978]; Fried v. Bower & Gardner, 46 NY2d 765 [1978])

A. John

Where a liability insurance policy requires notice "as soon as practicable", notice must be given to the carrier within a reasonable period of time. (Great Canal Realty Corp. v. Seneca, 5 [*5]NY3d 742, 743 [2005]). "The duty to give notice arises when, from the information available relative to the accident, an insured could glean a reasonable possibility of the policy's involvement (Paramount Ins. Co. v. Rosedale Gardens, 293 AD2d 235, 239-240[1st Dept. 2002]). A reasonable belief in non-liability may excuse an insured's failure to give timely notice, but the insured has the burden of showing the reasonableness of such excuse, given all the circumstances (White v. City of New York, 81 NY2d 955, 957 [1993]; SSBSS Realty Corp. v. Public Service Mutual Ins. Co., 253 AD2d 583 [1st Dept. 1998]).

" [W]here there is no excuse or mitigating factor, the issue [of reasonableness] poses a legal question for the court' rather than an issue for the trier of fact" (Tower Ins. Co. V. Lin Hsin Long Co., 50 AD3d 305 [1st Dept 2008] quoting SSBSS Realty Corp. v. Public Service Mutual Ins. Co., 253 AD2d at 584).

In SSBSS Realty Corp. v. Public Service Mutual Ins. Co., 253 AD2d 583, a case quite similar to the one at bar, the court granted judgment to defendant insurer finding that it had no duty to defend and indemnify plaintiff. In that case, a patron slipped and fell on a raised portion of a sidewalk upon exiting plaintiff's diner. The diner's manager told the owner, who was not present when the accident occurred, that a woman had fallen on the sidewalk in front of the diner and had been taken away by ambulance. The manager reported that the woman did not appear to be injured. Three months after the accident, the owner received a letter notifying him that the patron intended to assert a claim which notice was forwarded to insurer. The insurer disclaimed coverage on the ground that the insured had failed to provide timely written notice of the accident as required by the policy. There, the court found that it was unreasonable for the insured to believe that the patron would not assert a claim against it, because the patron was transported by ambulance from the scene to the hospital and the manager and owner were both able to locate the defective condition that caused the fall. In SSBSS at 585, the court stated,

[n]or may the insured's failure be excused by its

claimed lack of sufficient information to form a

belief about whether or not a claim would ensue.

With the facts undisputedly in the insured's possession, at minimum, it had both the ability and responsibility to investigate the outcome of the accident.

(See, White v. City of New York, 81 NY2d at 958; see also, Argentina v. Otsego Mut. Fire Ins., Co., 86 NY2d 748, 751 [1995]).

Similarly, in Tower Insurance Co. of New York v. Lin Hsin Long Co. (50 AD2d 305), a patron slipped and fell in the restroom of defendant insured's restaurant and was removed by ambulance to [*6]the hospital. The manager, although not present, was informed about the accident on the day it occurred. The manager stated that, based on the information he received from his employees, he believed that the accident was caused by the patron's own actions and that no claim would be asserted against him. Approximately three months after the accident occurred, the injured patron's counsel sent a letter to the insured notifying the insured of the claim and asking the insured to forward the information to his insurer. Because counsel received no response from the insured, he sent a second letter the following month and, when counsel received no response to the second letter, he commenced an action. The insurer did not receive notice of the claim until nine months after the accident occurred. Following an investigation it disclaimed coverage on the ground that neither the insured nor the injured patron timely notified the insurer of the accident.

There, the court found as a matter of law, that the insured failed to give the insurer timely notice of the accident. It held that the insured's assertion that it had a reasonable belief that the accident would not result in liability failed as a matter of law because the accident occurred on the insured's premises; the patron was transported by ambulance to the hospital; and the owner's employees knew about the accident. Moreover, in response to the owner's statement that he believed that the accident was the patron's own fault, the court cited Justice Sullivan's statement in Paramount Ins. Co., supra, 293 AD2d at 240, to wit:

The requirement of prompt notice of any occurrence

that may result in a claim' should not be interpreted in a way that the insurer is compelled to relinquish its right to prompt notice and all the benefits that accrue therefrom a timely investigation and the opportunity, if appropriate, to dispose of the claim in its early stages, an opportunity that might be irretrievably lost in the case of delayed notice by placing undue emphasis on the liability assessment of one not trained or even knowledgeable in such matters.

In this case, John admits that on the day of the occurrence he received notice from someone who identified himself as a police officer that someone named Dias had fallen on his premises and that a piece of railing was removed because of the fall. John's assertion that he did not know that anyone was injured is belied by his own statement that he knew that someone fell; Dias's testimony that she called John from the hospital to tell him that she fell (Tr. P. 197) and the accident report which states that the police officer contacted Matthew John by phone and notified him of the occurrence (Sander's Aff., Ex. 3). Under the circumstances, even construing the facts most favorably to the insured, there is no evidence that would lead to a [*7]"reasonable belief" that the party who fell would not assert a claim and, with the facts in his possession, John had both the ability and the responsibility to investigate the outcome of the occurrence (See, SSBSS v Public Service Mutual Ins. Co., 253 AD2dat 585). John's failure to investigate the occurrence was unreasonable as a matter of law.

B. Dias

An injured party, such as Dias, has an independent right to notify an insurer of an accident (Ins. Law Section 3420[a][3]). In order to rely on that notice provision, the injured party is required to demonstrate that he or she acted diligently in attempting to learn the identity of the insurer, and that once the insurer was identified, that he or she provided the insurer with notice as expeditiously as possible (Tower Insurance Co. Of New York v. Lin Hsin Long Co., 50 AD3d 305; Appel v Allstate Ins. Co., 20 AD3d 367 [1st Dept 200]). Where the injured party proceeds diligently to discover the identity of the insurer and to give notice, he or she is not vicariously charged with any delay on the part of the insured (Jenkins v. Burgos, 99 AD2d 217, 221 [1st Dept 1984], and see Appel v Allstate Ins. Co., 20 AD3d 367). However, the standard of notice for the injured party is less rigorous than that applicable to the insured (see, Appel, 20 AD3d 398-369).

In Appel, the injured party commenced a lawsuit three months after the accident, obtained a default judgment after a judicial inquest and entered judgment ten months later; she did not learn the identity of the insurer that disclaimed based on the insured's failure to give prompt notice until nearly two years later (id. at 368). Counsel sent a copy of the default judgment to the insurer a week after learning of the disclaimer, and approximately two years after the accident. The Appellate Division held that the plaintiff had preserved her statutory right to proceed directly under Insurance Law Section 3420(b) as a matter of law. Where, as here, the insurer does not dispute receiving notice (albeit untimely) from its insured, "the only issue with respect to the injured party [is] whether the efforts of the injured party to facilitate the providing of proper notice were sufficient in light of the opportunities to do so afforded it under the circumstances" (Id. at 369 [citations omitted]).

Here, there has been no showing that Dias had reason to know that notice directly to Tower was required (see, Continental Casualty Co. v Employers Ins. Co. Of Wausau, 16 Misc 3d 223, 245 [Sup Ct, NY County 2007), and under the circumstances, her counsel was reasonably diligent in his efforts to ascertain the identity of John's insurer. Tower urges the court to hold that the efforts by Dias's attorney were inadequate as a matter of law. In light of the fact that her attorney contacted John approximately three months after the accident and commenced the [*8]lawsuit one month later, it cannot be said that Dias sat on her rights. Moreover, Tower disclaimed even before John's time to answer the complaint had expired. On February 12, 2007, four days before Tower sent its formal disclaimer letter, it sought, and received, the consent of Dias's attorney to extend John's time to serve an answer to the complaint (Letter from Tower employee Brian Kuhn to Howard Sanders, Esq., annexed to Sanders Aff. In Opposition at Ex. 6). Tower acknowledged receipt of the complaint in its disclaimer letter of February 16, 2007 (Sanders Aff., Ex. 5). Dias's lawyer communicated directly with Tower regarding the litigation, and Tower participated in the litigation by requesting Dias's forebearance in permitting it the opportunity to file a late answer on John's behalf. Under these circumstances, it cannot be said that Tower has met its burden of showing that Dias, as the injured party, relied solely on the insured to give notice to Tower and failed to proceed diligently in giving notice of her claim directly to Tower. Accordingly, it hereby is

ORDERED that Tower's motion for a declaratory judgment that it is not obligated to defend or indemnify the defendants is granted in part; and it further is

ADJUDGED and DECLARED that plaintiff Tower Insurance Company has no duty to defend or indemnify defendants Jaison John Realty Corp. and Matthew John against claims made against them in the underlying action; and it further is

ORDERED that defendants Jaison John Realty Corp. and Matthew John's cross motion is denied; and it further is

ORDERED that defendant Elizabeth Dias's cross motion is granted; and it further is

ADJUDGED and DECLARED that Tower is not entitled to a declaration as against Dias with respect to her claim in the underlying action or to her right to proceed directly against Tower therein; and it further is

ORDERED that the clerk is directed to enter judgment accordingly.

DATE: June, 2008ENTER:

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J.S.C.