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Agoado Realty Corp. v. United International Insurance Co.6/20/2000
te Division was correct in concluding that a question of fact exists regarding the first affirmative defense alleging that plaintiffs failed to notify defendant as soon as practicable of the May 19, 1996 occurrence. Nonetheless, the court erred in granting summary judgment on the second and third affirmative defenses alleging that plaintiffs failed to notify defendant "as soon as practicable" of service of the summons and complaint upon them and the claim against them. Service was made upon the Secretary of State and notice of service was mailed to plaintiffs' designated agent in February 1997; plaintiffs received a follow-up letter in April 1997 advising them of the suit. Plaintiffs, however, did not notify defendant of the suit or that a claim may be filed until June 1997. Thus, a triable issue of fact exists regarding defendant's second and third affirmative defenses.
Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating defendant-appellant's second and third affirmative defenses, and, as so modified, affirmed. The certified question should be answered in the negative.
Order modified, without costs, by reinstating defendant- appellant's second and third affirmative defenses and, as so modified, affirmed.
Certified question answered in the negative.
Opinion by Judge Wesley.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Rosenblatt concur.
Decided June 20, 2000
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