In SSBSS Realty Corp. v. Public Service Mutual Ins. Co., 253 AD2d 583, 677 N.Y.S.2d 136 [1st Dept. 1998]), the court granted judgment to defendant insurer finding that it had no duty to defend and indemnify plaintiff.
In that case, a patron slipped and fell on a raised portion of a sidewalk upon exiting plaintiff's diner.
The diner's manager told the owner, who was not present when the accident occurred, that a woman had fallen on the sidewalk in front of the diner and had been taken away by ambulance. The manager reported that the woman did not appear to be injured.
Three months after the accident, the owner received a letter notifying him that the patron intended to assert a claim which notice was forwarded to insurer.
The insurer disclaimed coverage on the ground that the insured had failed to provide timely written notice of the accident as required by the policy.
There, the court found that it was unreasonable for the insured to believe that the patron would not assert a claim against it, because the patron was transported by ambulance from the scene to the hospital and the manager and owner were both able to locate the defective condition that caused the fall.
In SSBSS at 585, the court stated,
"nor may the insured's failure be excused by its claimed lack of sufficient information to form a belief about whether or not a claim would ensue."