Summary Judgment: No prejudice standard applies when insured timely reports a claim but gives late notice of subsequent suit


If an insured gives its commercial general liability insurer timely notice of an occurrence, but late notice of the subsequent tort suit against the insured, should the insurer be entitled to deny defense and indemnity without having to show it was prejudiced by the delay?  According to the New York Supreme Court, in Aspen Ins. UK Ltd v. Long Island Concrete, Inc. et al., Index No. 15456/13 (Supreme Court, Queens County), the answer is yes, if the insurance policy was issued before January 17, 2009, the effective date of the amendment to New York Insurance Law 3420.  Eric Portuguese and Jonathan Glasser of Lester Schwab obtained summary judgment - entered on September 14, 2015 – declaring as a matter of law that Aspen Insurance UK Limited had no duty to defend or indemnify Long Island Concrete in underlying property damage litigation where (1) Long Island Concrete’s notice of occurrence was timely, but (2) its notice of the resulting suit was provided two years late, regardless of whether Aspen was prejudiced by the late notice of suit.


Eric A. Portuguese
Jonathan Glasser

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