Feigelson v. Allstate Insurance

Order affirmed, with costs, in the following memorandum: In this action, brought pursuant to section 167 of the Insurance Law (subd. 7, par. [a]), the record establishes that the plaintiff failed to give the defendant Allstate “ written notice ” of the accident or of the suit against its insured “ within a reasonable time under all the circumstances ”. (See Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127,129; Insurance Law, § 167, subd. 1, pars. *916[c], [d].) It follows, therefore, that the plaintiff is precluded from recovering against the insurer upon the policy. Since he did not in the trial court seek to establish the claim that the defendant had “ waived ” the notice requirements of the policy or was “estopped” from asserting the defense of untimely notice (Insurance Law, § 167, subd. 8; see Appell v. Liberty Mut. Ins. Co., 17 N Y 2d 519, affg. 22 A D 2d 906), he may not do so for the first time in the Court of Appeals. (See Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127,131, supra; see, also, Farr v. Newman, 14 N Y 2d 183,188; Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N. Y. 342, 349.)

Concur: Chief Judge Ftjld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson.