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GALAXY INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. 1454 NICHOLAS AVENUE ASSOCIATES, DEFENDANT-RESPONDENT.

Although a reasonable belief in non-liability may excuse an insured's failure to give timely notice (see, SSBSS Realty Corp. v. Pub. Serv. Mut. Ins. Co., 253 A.D.2d 583), whether an insured's belief in non-liability is reasonable generally presents an issue to be resolved at trial (Agoado Realty Corp. v. United Intl. Ins. Co., 260 A.D.2d 112, 118-119, affd in relevant part 95 N.Y.2d 141). This case constitutes no exception, since it cannot be said, as a matter of law, that defendant insured reasonably believed that there was no risk of liability stemming from the assault upon which the underlying claim against it is premised, such assault having occurred upon defendant's property.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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GALAXY INS. CO. v. 1454 NICHOLAS AVE. ASSOC
(Oct 26, 2000)