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In an action for a judgment declaring the rights of the parties

In an action for a judgment declaring the rights of the parties with respect to an insurance policy, the respondent Insurance Company appeals from a judgment of the Supreme Court which, after a nonjury trial, is in favor of the complainants in declaring that the Insurance Company has an obligation to defend and indemnify the complainants with respect to a certain action to recover damages for personal injuries pending against them.

When the facts of an occurrence are such that an insured acting in good faith would not reasonably believe that liability on his part will result, notice of the occurrence given by the insured to the insurer is given as soon as practicable if given promptly after the insured receives notice that a claim against him will in fact be made.

The Supreme Court concluded that under the circumstances of the case, notice was timely given to the Insurance Company. The court’s determination is supported by the record.

In response to the dissenting concerns regarding the state of the record, the underlying facts are not in dispute, and while there is certainly disagreement between the parties as to whether the decision of the Supreme Court was correct, there is no argument that it was improper for the Supreme Court to base its determination on the record before it. The parties charted their own litigation course.

The complainants bore the burden of proving that their 2 1/2 year delay in notifying the appellant of the underlying accident was excusable. The complainants have clearly failed to meet their burden.

The record on appeal consists of the parties’ pleadings, the parties’ memoranda of law, the transcript of certain colloquy which is now characterized as a framed issue hearing, a one-page decision, a two page judgment, and a notice of appeal. There is no trial testimony and no motion papers, and thus no evidence.

Assuming that the transcribed statements made by the court in the presence of the parties’ attorneys during the course of the colloquy characterized as a framed issue hearing may properly be considered a stipulation, the stipulation establishes only that the underlying dog bite incident occurred on November 1, 1987, that the complainant witnessed the incident, and that the complainants did not give notice of the incident to the Insurance Company until after they had received a summons and complaint in connection with the underlying dog bite case in July 1990. Assuming that the court would treat the unsworn statements contained in the parties’ memoranda of law as evidence, the complainant accompanied the dog-bite victim to the hospital, and later saw her with her arm bandaged. The complainants offered to pay for the victim’s medical expenses, and that the victim or her parents declined the offer, although they never assured the complainants that they would not sue.

Under the circumstances, the Supreme Court held that the complainants were excused from complying with their contractual obligation to furnish the Insurance Company with notice of the dog-bite incident as soon as reasonably practicable. The determination upheld in the majority, cannot be reconciled with prior cases. The refusal by the parents of the dog-bite victim to accept payment seems to have swayed th majority in favor of deciding that the complainants’ delay was reasonable.

There is no other factor which might distinguish the case. One does not have to be a lawyer to know that a dog bite can give rise to legal liability. There is no proof that the injury suffered by the dog-bite victim was trivial. Further, it is not a case where the insured and the injured party were related or members of the same household. Based on the deficient record, the complainants knew that a dog-bite incident would in fact be covered under the terms of their homeowners’ policy. There is, in sum, no basis upon which to conclude that they acted with ordinary prudence in failing to notify the Insurance Company of the dog-bite incident.

It is the dog owner’s responsibility to make sure that their dogs do not cause harm to others. The insurance company also has the obligation to protect the insured from lawsuits and claims. If you find yourself unprotected by your insurance company in the middle of a lawsuit or claim, call a NY Injury Attorney. For your dog attack related actions, consult a New York Dog Bite Lawyer or NY Dog Attack Attorney from Stephen Bilkis and Associates.

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