This is an action for a declaratory judgment. The court has before it plaintiff's motion for summary judgment which is opposed by the defendants. Although issue has been joined, there has been no preliminary conference, nor has the note of issue been filed. Therefore, this motion can be considered, and will be decided on the merits, because it is within the time limitations set forth in CPLR 3212. Brill v. City of New York, 2 NY3d 648 (2004).

The court's decision follows.

Facts considered and arguments presented

Lin Hsin Long Co., Inc. ("Lin Hsin") owns/operates a restaurant called "Hunan Ritz Restaurant" in New Rochelle. Plaintiff Tower Insurance Company of New York ("Tower") issued a commercial lines policy (CPP2310526) to Lin Hsin for the restaurant [*2]premises. The policy was effective from February 3, 2004 to February 3, 2005 ("the policy"). Plaintiff contends that it billed Lin Hsin for the insurance premiums on December 12, 2003, notifying the insured that payment was due February 3, 2004.

Plaintiff provides the sworn affidavit of Mr. Russo who states that when payment was not received by the due date, Tower mailed a cancellation notice to the insured advising the owner that if payment was not made by February 26, 2004, the policy would be cancelled as of that date. Lin Hsin failed to make the payment, and the policy was cancelled. Ms. Irwin, plaintiff's manager of operations, has provided her sworn affidavit describing the process involved in mailing these notices. Mr. Ram has provided his sworn affidavit stating he mailed the notice to the insured.

On January 29, 2005, Ms. Theodoratos, a patron of the restaurant, fell at the premises. She commenced a personal injury action on July 12, 2005 against Lin Hsin (Theodoratos v. Lin Hsin Long Co., Inc., Index No 11270/05, Supreme Court, Westchester County) (the "Westchester action"). Mr. Aptman, plaintiff's vice president for liability claims, states in his sworn affidavit that Tower was not notified of Ms. Theodoratos' accident (e.g. the "occurrence") until October 21, 2005 when Lin Hsin forwarded the summons and complaint in the Westchester action to Tower.

Thereafter, on October 27, 2005, plaintiff had its private investigator (Mr. Bavaro) interview Mr. Lin, the restaurant manager, and Ms. Taur, its cashier. According to Mr. Bavaro's sworn affidavit in support of Tower's motion, they told him they knew about the accident when it happened. He has provided copies of those statements as exhibits to his affidavit. Plaintiff contends that following its investigation, it disclaimed coverage to Lin Hsin by letter dated November 17, 2005 from Mr. Aptman. The disclaimer states that:

"[you were] aware of the subject incident on the date it occurred, January 29, 2005. However, you did not notify us of the incident and/or claim until October 21, 2005. Accordingly you breached the policy conditions set forth above by failing to notify us of the incident and/or claim as soon as practicable."

In opposition, plaintiff offers his sworn affidavit that he did sent Tower a check for the premium on February 19, 2004, before the cancellation date. He provides a copy of his check ledger as proof he did so. He also contends he mailed the check in the envelope provided by Tower with the "To" and "From" addresses being Tower's post office box. Mr. Lin contends he subsequently received a followup bill for the same policy and period indicating his next payment was due March 3, 2005. He paid the bill for $312.28 on March 15, 2004 with check number 1647. Lin Hsin contends that not only is this proof Tower expects payment by mail, but that such payment should be deemed timely as of the date mailed. See: GEICO v. Solaman, 157 Misc 2d 737 (Sup Ct 1993). Lin Hsin argues that since the policy was fully paid and current, and Tower continued to bill the restaurant for payments, it had no reason to believe that it had been cancelled. Lin Hsin notes that Tower never disclaimed coverage on that basis, so even then (October 2005) it still believed it had an effective policy.

Mr. Lin contends he did not know there had been a reportable occurrence, within the meaning of the policy, until he was served in the Westchester action in October 2005. He contends he had heard about the accident from the cashier, but was told Ms. [*3]Theodoratos had declined medical treatment. She did not provide any contact information where she could be reached and Mr. Lin could not follow up with her. Mr. Lin contends that he did not report the accident because he had a good faith basis to believe she had not been injured, she had stated inasmuch to the staff at the restaurant, and therefore there was no "occurrence" or possible claim to report.

Mr. Lin contends that the investigator's transcription of his "statement" (and that of the cashier) is grossly distorted, and not what he said. He contends that English is not his native language and that his "statement" was written down by the investigator who told him to sign it without having it translated or read to him verbatim. He contends it is inadmissible evidence because It is unsworn. Moreover, he claims some of it was fabricated by Mr. Bavaro to serve his client (Tower).

A separate basis to deny plaintiff's motion, Lin Hsin contends it is premature because discovery is not yet completed and some of the documents that have already been by plaintiff were redacted. Tower does not deny redacting documents but argues it was necessary because it pertains to the underlying Westchester personal injury action, and therefore immaterial.

Ms. Theodoratos also opposes Tower's motion to charge her with Lin Hsin's failure to timely report an occurrence or commencement of her lawsuit against the restaurant. She claims she made diligent efforts to ascertain Lin Hsin's insurance information before commencing her lawsuit against the restaurant but it did not cooperate with her. She relies upon letters her attorneys sent to Lin Hsin asking for its insurance information and that it contact its insurance company. Ms. Theodoratos contends that she should not be held vicariously liable for failing to notify Tower of her accident under these circumstances, and that even if summary judgment is granted to Tower against Lin Hsin, it should be denied as to her.

Law Applicable to Motions for Summary Judgment

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). A party may not defeat a motion for summary judgment with bare allegations of unsubstantiated facts. Zuckerman v. City of New York, supra at 563-64.

When only issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing. See: Hindes v. Weisz, 303 AD2d 459 (2nd Dept 2003).

Where a party opposed to summary judgment contends that discovery is incomplete, the court may consider whether the motion is premature because the information necessary to fully oppose the motion remains under the control of the proponent of the motion. CPLR § 3212 (f); Lewis v. Safety Disposal System of Pennsylvania, Inc., 12 AD3d 324 (1st dept. 2004); Global Minerals and Metals Corp. v. Holme, 35 AD3d 93 (1st dept 2006) (internal citations omitted).

Discussion

Plaintiff has failed to prove that Lin Hsin's insurance policy had been cancelled [*4]for nonpayment and therefore not in effect on the date of Ms. Theodorato's accident at the restaurant. Lin Hsin has, in any event, raised factual disputes about whether plaintiff received the check before the cancellation date, but failed to cash it. A payment for premiums deposited in the mail is considered timely if mailed within the grace period, depending on its postmark. See: GEICO v. Solaman, 157 Misc 2d 737 (Sup Ct 1993). Significantly, Tower does not challenge Mr. Lin's claim that the check has never been negotiated by plaintiff or returned. Thus, the whereabouts of the check is unknown. Tower's subsequent bill and acceptance of Mr. Lin's payment is inconsistent with plaintiff's present claim that there was no insurance in effect at the time of the accident at the restaurant. Zeldman v. Mutual Life Ins. Co. of New York, 269 AD2d These unresolved facts alone warrant the denial of plaintiff's motion for summary judgment against Lin Hsin on the basis that the restaurant did not have a policy in effect at the time of the accident.

An insurer may demand that timely notice of an "occurrence" that may lead to a claim against its insured, or of a claimant's lawsuit so that the insurer has the opportunity to appear and defend the matter or try to settle it without litigation. American Transit Insurance Company v. Sartor, 3 NY3d 71 (2004). The insurer need not show prejudice before disclaiming on late notice of a lawsuit. City of New York v. Continental Cas. Co., 27 AD3d 28 (1st Dept. 2005).

There is no dispute that Tower was first notified of Ms. Theodorato's claim when Mr. Lin sent it the summons and complaint on October 21, 2005. Since the restaurant is a corporation, it was served in accordance with BCL § 306 (e.g. the Secretary of State). Tower does not challenge Mr. Lin's contention that the papers were not delivered to Lin Hsin until October 2005. Ms. Theodoratos' affidavit of service was filed on October 10, 2005, indicating a copy of the summons and complaint were sent directly to the restaurant on or about that date. Thus, there was only a short period of time between Lin Hsin being served in the Westchester action and its notice to Tower that it had been sued.

Under these circumstances, Tower has not proved that Lin Hsin 1) failed to timely notify it of an "occurrence" sooner than when the lawsuit was commenced, or 2) that Lin Hsin delayed in forwarding the summons and complaint to it once the action was commenced. Although it would appear under the facts not in dispute that Lin Hsin timely notified Tower of the commencement of the Westchester action [See: Argo Corp. v. Greater NY Mut. Ins. Co., 4 NY3d 332 (2005)], there is a factual dispute whether under all the circumstances of this case, the delay in notifying Tower of Ms. Theodorato's claims until the commencement of Westchester action was reasonable. This is for the jury to decide. See: Argentina v. Otsego Mutual Fire Insurance Co., 86 NY2d 748 (1995).

Plaintiff's motion for summary judgment against Ms. Theodoratos on the basis that Lin Hsin failed to timely notify it of her claim is also denied. Where the insured fails to give proper notice, the injured party can give notice herself, thereby preserving her right to proceed directly against the insurer. Appel v. Allstate Ins. Co., 20 AD3d 367 (1st Dept 2005). Ms. Theodoratos has raised issues of fact whether she made diligent efforts to do so, and how her request was addressed by Lin Hsin. These and other factual disputes are the jury to decide. [*5]

Although Lin Hsin contends that this motion was premature because discovery is incomplete, it appears from the results achieved that it had ample information with which to capably oppose the motion. Therefore, that is not a reason for the court denying plaintiff's motion.

In summary, plaintiff's motion for summary judgment and a declaration that it does not have to provide defense or indemnify Lin Hsin Long Co, Inc. t/a Hunan Ritz Restaurant is denied. Plaintiff's motion for summary judgment charging Ms. Theodoratos with any delays attributable to Lin Hsin in providing Tower with notice of her claim against its insured is also denied.

Since no preliminary conference has been held, and it appears that no discovery schedule has been set in this case, the preliminary conference is hereby scheduled for October 11, 2007 at 9:30 a.m. in Part 10.

Conclusion

Plaintiff's motion for summary judgment is denied in all respects and the preliminary conference is scheduled for October 11, 2007 at 9:30 a.m. in Part 10.

Any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

This shall constitute the decision and order of the court.

Dated:New York, New York

August 30, 2007

_________________________

Hon. Judith J. Gische, JSC