U.S. UNDERWRITERS INSURANCE COMPANY, Plaintiff-Appellee, v. 203-211 WEST 145TH STREET REALTY CORP. and 203 West 145th Street Associates, L.P., Defendants-Appellants, Richard Brown, Abram Gin, Stephen P. Grathwohl, Alex Zaika, Todd Lefkowitz and Donna Lefkowitz, Defendants, 37 F. App'x 575

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is VACATED AND REMANDED. The defendants-appellants timely appeal from a judgment entered on October 17, 2001, by the United States District Court for the Southern District of New York, granting the plaintiffs motion for

summary judgment. The District Court granted the plaintiffs motion for

summary judgment because it concluded that under New York law “an insurer need not demonstrate prejudice before it may disclaim coverage based on an insured’s failure to comply with notice of suit requirements set forth in an insurance policy, even where an insured previously provided timely notice of claim.” U.S. Underwriters Ins. Co. v. 203-211 West 145th Street Realty Corp., No. 99 Civ 8880 (S.D.N.Y. Oct. 12, 2001).

In a recent New York Court of Appeals decision, In re Brandon, 769 N.E.2d 810, 743 N.Y.S.2d 53, 97 N.Y.2d 491 (2002), the New York Court addressed whether an insurance company may be permitted to disclaim coverage of a policy holder. The Court held that, where a timely notice of claim has been provided, insurers relying on late notice of legal action should be required to demonstrate prejudice. Id. Accordingly, we vacate the judgment and remand the cause to the District Court for further consideration in light of In re Brandon.

For the foregoing reasons, the order of the District Court is hereby VACATED and REMANDED.