Galaxy Insurance v. 1454 Nicholas Avenue Associates

Order, Supreme Court, New York County (Herman Cahn, J.), entered April 26, 1999, which granted defendant’s cross motion for summary judgment, declaring that plaintiff insurer is required to defend and indemnify defendant in the underlying personal injury action and awarding defendant attorney’s fees, and denied plaintiff’s motion for summary judgment, unanimously modified, on the law, to deny defendant’s cross motion for summary judgment and request for attorney’s fees, and otherwise affirmed, without costs.

Although a reasonable belief in non-liability may excuse an insured’s failure to give timely notice (see, SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d 583), whether an insured’s belief in non-liability is reasonable generally presents an issue to be resolved at trial (Agoado Realty Corp. v United Intl. Ins. Co., 260 AD2d 112, 118-119, affd in relevant part 95 *425NY2d 141). This case constitutes no exception, since it cannot be said, as a matter of law, that defendant insured reasonably believed that there was no risk of liability stemming from the assault upon which the underlying claim against it is premised, such assault having occurred upon defendant’s property. Concur — Rosenberger, J. P., Nardelli, Ellerin, Lerner and Friedman, JJ.