Shutter v. Nationwide Mutual Insurance , 613 N.Y.S.2d 273 ( 1994 )

Appeal from an order of the Supreme Court (Cobb, J.), entered June 17, 1993 in Greene County, which, inter alia, partially granted defendant’s cross motion for summary judgment and declared that defendant is not obligated to provide underinsurance benefits to plaintiffs.

In our view, Supreme Court correctly concluded that defendant is not obligated to provide underinsurance benefits to plaintiffs. Defendant disclaimed coverage under the underinsured motorist endorsement in its policy due to plaintiffs’ delay in advising defendant of a potential personal injury claim and plaintiffs’ failure to immediately forward to defendant a copy of the summons and complaint in that action. Under the circumstances, plaintiffs’ clear failure to timely comply with the policy provisions vitiated coverage.

Mikoll, J. P., Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.