Matter of Brandon

In Matter of Brandon (Nationwide Mut. Ins. Co.) (97 N.Y.2d 491 [2002]), the Court again departed from the general no-prejudice rule and held that the carrier must show prejudice before disclaiming based on late notice of a lawsuit in the SUM context (see 97 N.Y.2d 491, 498, 769 N.E.2d 810, 743 N.Y.S.2d 53 [2002], supra). Under the facts of Brandon, the carrier received timely notice of claim but late notice of a lawsuit (see id. at 494-495). The Court was unwilling to extend the no-prejudice exception in regard to late notice of a lawsuit because "unlike most notices of claim--which must be submitted promptly after the accident, while an insurer's investigation has the greatest potential to curb fraud--notices of legal action become due at a moment that cannot be fixed relative to any other key event, such as the injury, the discovery of the tortfeasor's insurance limits or the resolution of the underlying tort claim" (see id. at 498). Brandon did not abrogate the no-prejudice rule and should not be extended to cases where the carrier received unreasonably late notice of a claim.