16-80-cv
Minasian v. IDS Prop. Cas. Ins. Co.


                                      UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 19th day of January, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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NIKOLAI MINASIAN, HARUTYUN MINASIAN,
                                 Plaintiffs-Appellants,

                                v.                                       No. 16-80-cv

IDS        PROPERTY             CASUALTY              INSURANCE
COMPANY, DBA AMERIPRISE INSURANCE
COMPANY, STATE FARM FIRE & CASUALTY
COMPANY,
                                 Defendants-Appellees.
----------------------------------------------------------------------
APPEARING FOR APPELLANTS:                         BRETT ANDREW NADLER, Ballon Stoll
                                                  Bader & Nadler, P.C., New York, New York.

APPEARING FOR APPELLEES:                          ALFRED C. POLIDORE, Bruno, Gerbino &
                                                  Soriano, LLP, Melville, New York, for IDS
                                                  Property Casualty Insurance Company, DBA
                                                  Ameriprise Insurance Company.




                                                     1
                                         CHERYL F. KORMAN (Michael A. Troisi,
                                         Merril S. Biscone, Tamika N. Hardy, on the
                                         brief), Rivkin Radler LLP, Uniondale, New
                                         York, for State Farm Fire & Casualty Company.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (Katherine B. Forrest, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on December 9, 2015, is AFFIRMED.

      Plaintiffs Nikolai and Harutyun Minasian appeal from an award of summary

judgment in favor of defendants IDS Property Casualty Insurance Company, doing

business as Ameriprise Insurance Company, and State Farm Fire & Casualty Company,

on plaintiffs’ claims that defendants breached their insurance contracts by failing to pay

for losses resulting from an alleged burglary of plaintiffs’ property. We review an

award of summary judgment de novo and will affirm only if the record, viewed in the

light most favorable to the non-movant, shows no genuine issue of material fact and the

movants’ entitlement to judgment as a matter of law. See Betances v. Fischer, 837 F.3d

162, 171 (2d Cir. 2016). We assume the parties’ familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision to affirm

substantially for the reasons stated by the district court. See Minasian v. IDS Prop. Cas.

Ins. Co., No. 14-cv-10125 (KBF), 2015 WL 8485257 (S.D.N.Y. Dec. 9, 2015).

1.    Plaintiffs Failed To Provide Timely Notice

      Timely notice is a condition precedent to insurance coverage under New York

law, see White v. City of New York, 81 N.Y.2d 955, 957, 598 N.Y.S.2d 759, 760 (1993),


                                            2
and the failure to provide such notice relieves the insurer of its coverage obligation,

regardless of prejudice, see Briggs Ave. LLC v. Ins. Corp. of Hannover, 11 N.Y.3d 377,

381–82, 870 N.Y.S.2d 841, 842 (2008). A notice obligation is triggered when “the

circumstances known to the insured . . . would have suggested to a reasonable person the

possibility of a claim.” Sparacino v. Pawtucket Mut. Ins. Co., 50 F.3d 141, 143 (2d Cir.

1995). Where an insurance policy requires notice be given as soon as practicable, “such

notice must be accorded the carrier within a reasonable period of time.” Great Canal

Realty Corp. v. Seneca Ins. Co., 5 N.Y.3d 742, 743, 800 N.Y.S.2d 521, 522 (2005). On

numerous occasions, New York courts have held notice delays of less than three months

unreasonable as a matter of law and discharged insurers of coverage obligations. See,

e.g., Young Israel Co-Op City v. Guideone Mut. Ins. Co., 52 A.D.3d 245, 246, 859

N.Y.S.2d 171, 172 (1st Dep’t 2008) (40 days); American Home Assurance Co. v.

Republic Ins. Co., 984 F.2d 76, 78 (2d Cir. 1993) (36 days); Power Auth. v. Westinghouse

Elec. Corp., 117 A.D.2d 336, 339–40, 502 N.Y.S.2d 420, 421–22 (1st Dep’t 1986) (26

days); Government Emps. Ins. Co. v. Elman, 40 A.D.2d 994, 994, 338 N.Y.S. 2d 666, 667

(2d Dep’t 1972) (29 days); Deso v. London & Lancashire Indem. Co. of Am., 3 N.Y.2d

127, 130, 164 N.Y.S.2d 689, 692 (1957) (51 days).

      The parties agree that the three insurance policies here at issue respectively

required the insured to provide notice of loss to the insurer “as soon as reasonably

possible,” “immediate[ly],” and “as soon as practicable.” J.A. 71, 375, 424. They also

agree that the alleged burglary occurred on January 1, 2014; that plaintiffs became aware

of the burglary that day; and that plaintiffs did not notify defendants of their losses any

                                            3
time before March 28, 2014. Plaintiffs do not dispute that they were aware of the

policies’ coverage.

      The circumstances as of January 1, 2014, would thus have suggested to a

reasonable person the possibility of a claim in light of the policies’ theft coverage, and

the 86-day delay that followed was unreasonable as a matter of law. As the district

court concluded, these related determinations find support in the language of the policies.

The same sections of the policies providing for notice to the insurer require notice to the

police in case of theft—which plaintiffs did on the day of the burglary—suggesting that

the insured is expected to contact both the insurer and the police in short order after

discovering the loss of insured property. Moreover, the State Farm policies also require

the insured to submit a formal proof of loss within 60 or 90 days after loss. The

preliminary notice requirement that is the subject of this action can only reasonably be

construed to require notice sooner than these formal notice requirements. Any different

construction would render the preliminary notice requirement a nullity. See Nautilus

Ins. Co. v. Matthew David Events, Ltd., 69 A.D.3d 457, 460, 893 N.Y.S.2d 529, 532 (1st

Dep’t 2010).

      Plaintiffs nevertheless argue—this time under the umbrella of the contention that

the district court failed to construe the evidence in the light most favorable to them and

resolved a disputed question of fact—that (1) their notice was timely, or (2) their delay

should be excused because (a) they reasonably believed that the police investigation was

ongoing and the jewelry might be located, and (b) they notified defendants promptly after

learning that the police investigation was “closed.”         Appellant’s Br. 12.     Even

                                            4
assuming plaintiffs held the professed belief in a possible recovery, that would not have

prevented a “reasonable person” from suspecting “the possibility of a claim.”

Sparacino v. Pawtucket Mut. Ins. Co., 50 F.3d at 143. Similarly, in light of policy

provisions already discussed, such a belief cannot form a reasonable—and thus

excusable—basis for notice delay. See Power Auth. v. Westinghouse Elec. Corp., 117

A.D.2d at 340, 502 N.Y.S.2d at 422 (“No exception is made [to the timely notice

requirement] for losses which . . . in the insured’s estimation may not ultimately ripen

into a claim.”); see also Heydt Contracting Corp. v. Am. Home Assurance Co., 146

A.D.2d 497, 499, 536 N.Y.S.2d 770, 772–73 (1st Dep’t 1989).1

       We also agree with the district court that plaintiffs’ alleged lack of sophistication

cannot excuse their notice delay, particularly in light of their ability to obtain insurance

coverage over particular items and to secure appraisals for those items.2

2.     The Policies Are Unambiguous

       Plaintiffs next argue that the term “covered loss” is ambiguous and must be

construed against the insurers. Fabozzi v. Lexington Ins. Co., 601 F.3d 88 (2d Cir.

2010), cited by plaintiffs to support this contention, is inapposite. That case dealt with a


1
   We note as well the distinction between the excuse of good-faith belief in
nonliability—which is accepted by New York courts in the third-party insurance context
because an insured has a good-faith belief that it will not require reimbursement from the
insurer—and this case, which involves insureds who knew they had suffered a loss that
had indisputably already occurred, whatever the chances for recovery. See Cohoes Rod
& Gun Club, Inc. v. Firemen’s Ins. Co. of Newark, 134 A.D.2d 782, 783, 521 N.Y.S.2d
836, 837 (3d Dep’t 1987).
2
  Plaintiffs cite no New York precedent recognizing lack of sophistication as a
reasonable excuse for failure to give timely notice.

                                             5
policy’s requirement to bring suit within a certain period of time after the date of loss,

language that presented ambiguities related to when a cause of action accrues, which had

produced different court interpretations. No such concern is present in this case. The

term “covered loss” is unambiguous on its face. See Breed v. Ins. Co. of N. Am., 46

N.Y.2d 351, 355, 413 N.Y.S.2d 352, 355 (1978) (holding that no ambiguity exists where

language has “definite and precise meaning, unattended by danger of misconception in

the purport of the policy itself, and concerning which there is no reasonable basis for a

difference of opinion”); accord Federal Ins. Co. v. Int’l Bus. Machs. Corp., 18 N.Y.3d

642, 649, 942 N.Y.S.2d 432, 436 (2012). Indeed, that plaintiffs submitted claims at all

proves that they recognized that the purportedly stolen items constituted covered losses.

Thus, for the reasons detailed more fully by the district court, we also conclude that “[n]o

reasonable person could interpret this language to mean that a known theft of property

only becomes a covered loss once the police cease to conduct an active investigation.”

Minasian v. IDS Prop. Cas. Ins. Co., 2015 WL 8485257, at *10.

3.     Conclusion

       We have considered plaintiffs’ other arguments and conclude that they are without

merit. Accordingly, we AFFIRM the grant of summary judgment to defendants.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




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