The late notice defense, absent a showing of prejudice, will soon disappear in January of 2009 thanks to a new law enacted by the NY Legislature.
But it’s not gone yet.
The Court of Appeals recently held that an insured failed to comply with the policy condition requiring notice “as soon as practicable” where nine months passed between service of the suit and notification to the insurance carrier.
The insured argued that it was also unaware of the lawsuit and thus unable to provide notice, but the Court held that the insured’s lack of knowledge was based on the insured’s own failure to update the address maintained by the Secretary of State for notification of service.
The Court stated it was “unquestionably practicable” for the insured to keep its address current with the Secretary of State, and therefore it failed to comply with the policy provision. Thus, there was no coverage for the loss.