In Tower Ins. Co. of N.Y. v. Lin Hsin Long Co. , Tower wanted a court to rule that it wasn't obligated to defend or indemnify Lin Hsin Long Co. -- known as Hunan Ritz Restaurant -- in connection with a personal injury suit filed against the establishment.
When it received notice some nine months after Charlotte Theodoratos fell in defendant's place of business, Tower filed its own lawsuit contending that, since neither Lin Hsin nor Theodoratos timely notified the insurer of a possible claim, Tower wasn't responsible for the payment of any sums found due to Theodoratos.
After the New York County Supreme Court denied Tower's motion for relief in its favor, the insurer appealed to the Appellate Division, First Department, which agreed Tower hadn't been given notice of the accident within a "reasonable period of time."
While Lin Hsin argued that it didn't contact Tower because it didn't believe there would be a claim, the AD1 was of the opinion the restaurant wasn't in a position to make that kind of assessment. (The AD1 also found Theodoratos' counsel failed to exercise "due dilgence" when he merely urged the restaurant to notify its carrier.)
A lone dissenter -- Justice Andrias -- didn't believe Theodoratos or her attorney did anything wrong, and that the governing standard should have been less stringently applied to an injured party (rather that the insured).
If the Court of Appeals doesn't intervene, this Tower will be insurmountable.
To download a copy of the Appellate Division's decision, please use this link: Tower Ins. Co. of N.Y. v. Lin Hsin Long Co.