Upon the foregoing papers, the motion for summary judgment (No. 1601) of third-party defendant Bradley and Parker, Inc. (hereinafter "Bradley") is granted, as is the like motion (No. 1806) of third-party defendant's Hanover Insurance Company and Massachusetts Bay Insurance Company (hereafter "Hanover"); the cross motion (No. 2850) by defendant/third-party plaintiff Door Automation Corp. and Door Automation of New York, Inc. (hereafter "DAC") is denied.

The underlying cause of action sounds in negligence. As is relevant, it is alleged that on July 20, 2000, plaintiff Philip Leone (hereafter "plaintiff") was stuck in the head by a metal plate apparently dislodged by an automated door at a Waldbaum's supermarket while it was closing.

In the initial action, plaintiff and his wife sued DAC, the company that allegedly had contracted with Waldbaums to provide maintenance for the automated door, and Georal International (hereafter "Georal"), the company that is alleged to have taken over the contract from DAC on June 30, 2000, some three weeks prior to the accident. In response, DAC commenced a third-party action against Bradley, an insurance agency, and Hanover its insurer, claiming that the latter was obligated to defend and indemnify DAC under its Commercial General Liability policy. DAC also joined Bradley, Hanover's alleged agent, as a third-party defendant.

Bradley's motion for summary judgment (No. 1601) is granted.

It is undisputed in this case that Bradley was the agent of a disclosed principal (Hanover). Hence, it cannot be held liable to DAC for any alleged breach of the Hanover policy (see Benatovich v. Propis Agency, 224 AD2d 998; see also Pelton v. 77 Park Ave Condominium, AD3d 825 NYS2d 28). Moreover, even if Bradley's agency was un-disclosed, summary judgment in its favor would still be warranted, since the only proof on the subject indicates that Bradley received its first notice of the impending lawsuit from DAC on April 15, 2003 (see Affidavit of Jennifer Canzoneri dated January 17, 2006), nearly three years after the July 20, 2000 occurrence (see Bradley's Exhibit "B"), and promptly forwarded this documentation to Hanover on April 16, 2003. DAC was notified of Hanover's denial of coverage "due to the late reporting of the incident" on April 22, 2003 (see Bradley's Exhibit "E").

Hanover's motion for summary judgment must also be granted in light of DAC's demonstrable failure to comply with the policy requirement that Hanover be notified "as soon as practicable of any covered event" (see Hanover's Exhibit "D", Section IV [2] [a]-[d]). Consistently therewith, DAC's cross motion, inter alia, to compel Hanover to defend and indemnify under its policy, is denied.

It is well settled that where a policy of liability insurance requires the insured to give notice of an occurrence "as soon as practicable," such notice must be transmitted to the carrier within a reasonable period of time (see Security Mut. Ins. Co. of NY v. Acker-Fitzsimons Corp., 31 NY2d 436, 441). Conversely, it has been held that the insured's failure to satisfy the notice [*2]requirement constitutes "a failure to comply with a condition precedent which, as a matter of law, vitiates the contract" (see Argo Corp. v. Greater NY Mut. Ins. Co., 4 NY3d 332, 339).

Here, DAC purports to rely upon the well-known exception that a "good faith" belief in non-liability can excuse an insured's failure to give the insurer timely notice of an occurrence (see Great Canal Realty Corp. v. Seneca Ins. Co., 5 NY3d 742). Nevertheless, in order to qualify for this exception, "the insured's belief must be reasonable under all the circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstance of the accident or occurrence. Additionally, the insured bears the burden of establishing the reasonableness of the proffered excuse" (id. at 744 [citations and internal quotation marks omitted).

DAC has failed to sustain its burden.

In this case, DAC's purported belief in non-liability has been rendered untenable by the May 9, 2001 memorandum from plaintiff's attorney to the president of DAC, to which is appended a copy of a September, 2000 letter from co-defendant Georal disclaiming liability and placing ultimate responsibility for plaintiff's injury on DAC (see Hanover's Exhibit "E"). Thus, any claim of a "good faith" belief in non-liability on the part of DAC after May 2001 (still nearly two years prior to DAC's first tender of notice to either Bradley or Hanover), is per se unreasonable. In this regard, the court must note that DAC has failed to proffer proof of any circumstance or event occurring during the two years following the May 2001 letter upon which to predicate, e.g., a reasonable belief that Georal would accept liability in this case. As a consequence of DAC's failure to sustain its evidentiary burden of demonstrating the "reasonableness of its proffered excuse" (see Modern Cont Constr Co. v. Giarola, 27 AD3d 431, 433 quoting Great Canal Realty Corp. v. Sencia Ins. Co., 5 NY3d at 744), its cross motion, inter alia, to compel coverage must be denied.

Accordingly, it is hereby

ORDERED that the separate and distinct motions for summary judgment by the respective third-party defendants are granted; and it is further

ORDERED that the cross motion by the third-party plaintiff is denied; and it is further

ORDERED that the Clerk enter judgment severing and dismissing the third-party action.

ENTER,

__________________________

DATED: January 30, 2007Robert J. Gigante,J.S.C.

bh