Castro v Omni Ins. Co., 2022 NY Slip Op 50057(U)(App. Term 2d Dept. 2022)
“Pennsylvania insurance policies, such as the one at issue in this matter, pursuant to which an insured is required to provide the insurer with notice “as soon as practicable,” are governed by a “notice-prejudice” rule (see Lozado v Workers’ Compensation Appeal Board [Dependable Concrete Work and Uninsured Employers Guaranty Fund], 123 A3d 365, 378 [Pa Commw 2015]). Under the notice-prejudice rule, “unless the insurer establishes prejudice resulting from the insured’s failure to give notice as required under the policy, the insurer cannot avoid its contractual obligation” (Ario v Underwriting Members of Lloyd’s of London Syndicates, 996 A2d 588, 598 [Pa Commw 2010]; see Brakeman v Potomac Ins. Co., 472 Pa 66, 76-77, 371 A2d 193, 198 [1977]). The Civil Court correctly concluded that there was an unresolved issue of fact as to whether defendant had been given notice of the accident or loss as soon as practicable. In any event, as defendant’s motion papers failed to establish that it had been prejudiced by reason of the lateness of the notice it received, the Civil Court properly denied defendant’s motion.”
Glad to see Gary T win. But what I am at a loss for is that first-party coverage is granted through the deemer statute and possibly through contractual deemer. Wouldn’t it make sense to apply New York’s claims and policy rules when the coverage is created through NY law? I just never agreed with “choice of law” when am EIP gets to enjoy the fruits of the NY law, yet is either hindered or (in this case) helped by an out of state claims rule. The Courts have not properly analyzed this issue.
