The Appellate Division, Second Department’s recent decision in Becker v. Colonial Cooperative Ins. Co. addresses whether the injured party exercised due diligence and gave notice of his injury to the defendant/insurer after falling in front of the defendant/insured’s bakery.  The factual recitation reveals that the insured did not give its insurer notice of the injury and only first notified the insurer when it mailed it a copy of the default judgment rendered against the defendant/insured three years after the accident.

The injured party was attempting to recover the amount of that default judgment directly from the defendant/insurer pursuant to Insurance Law sec. 3420(a)(2).  It is well-settled that sec. 3420(a)(2) will not charge the injured party vicariously with the insured’s delayed notification; the injured’s persons rights are judged by the prospects for giving notice that were afforded to him or her.  The standard is one of reasonableness.

Here, the Majority states that the defendant/insurer argued in support of its cross motion to dismiss the injured party "never even alleged that it ever notified" the defendant/insurer.  However, the Second Department later denies the defendant/insurer’s cross motion to dismiss the action the injured party commenced pursuant to Insurance Law sec. 3420(a)(2) because the defendant/insurer "wholly failed to even address the issue of the plaintiff’s independent right to give notice."  As such, the Court held that the defendant/insurer failed to prove its prima facie entitlement to summary judgment dismissing the complaint.

My confusion lies with the Court’s factual recitation of the defendant/insurer’s argument that addresses notification by the injured party.  Perhaps a look at the briefs would clarify the issue?  In any event, the case provides a good review of the notice requirements for injured parties pursuant to sec. 3420(a)(2).