| Quincy Mut. Fire Ins. Co. v Uribe |
| 2007 NY Slip Op 09011 [45 AD3d 661] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Quincy Mutual Fire Insurance Company, Appellant, v LuisAlberto Uribe et al., Respondents. |
—[*1] Edward H. Rosenthal, Kew Gardens, N.Y. (Everett N. Nimetz of counsel), for respondentDorothy Augustine.
In an action for a judgment declaring that the plaintiff was not obligated to defend andindemnify its insureds, Luis Alberto Uribe and Alan Uribe, in an action entitled Augustine vUribe, pending in the Supreme Court, Queens County, under index No. 14708/05, theplaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court,Queens County (Nelson, J.), dated May 4, 2007, as denied its motion for summary judgment,granted the cross motion of the defendant Dorothy Augustine for summary judgment, anddeclared that the plaintiff was obligated to defend and indemnify its insureds in the underlyingaction.
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
Insurance Law § 3420 (d) requires an insurance carrier to give its insured and theinjured party written notice of a disclaimer of coverage as soon as is reasonably possible. "An'insurer's failure to provide notice as soon as is reasonably possible precludes effectivedisclaimer, even [where] the policy holder's own notice of the incident to its insurer is untimely'(First Fin. Ins. Co. v Jetco Contr.Corp., 1 NY3d 64, 67 [2003])" (Matter of New York Cent. Mut. Fire Ins. Co. v Aguirre, 7 NY3d772, 774 [2006]). Where there is a delay in providing the written notice of disclaimer, theburden rests on the insurance company to explain the delay (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64 [2003]; Matter of Allstate Ins. Co. v Cruz, 30AD3d 511 [2006]; PennsylvaniaLumbermans Mut. [*2]Ins. Co. v D & Sons Constr. Corp., 18AD3d 843 [2005]). When the explanation offered for the delay is an assertion that there wasa need to investigate issues that will affect the decision on whether to disclaim, the burden is onthe insurance company to establish that the delay was reasonably related to the completion of anecessary, thorough, and diligent investigation (see Schulman v Indian Harbor Ins. Co., 40 AD3d 957 [2007]).
Here, the defendant Dorothy Augustine established her prima facie entitlement to judgmentas a matter of law, and the plaintiff failed to raise a triable issue of fact. The plaintiff failed tosubmit evidence demonstrating that an investigation was necessary and that it diligently pursuedand completed any investigation that was undertaken. The deposition testimony of its assistantmanager of litigation established only that the assistant manager noted the late notice issue assoon as she reviewed the notice of claim on August 26, 2005, that she directed an investigator toobtain a signed nonwaiver agreement from the insured, and after the nonwaiver agreement wasobtained on September 13, 2005, she retained counsel who commenced the declaratory judgmentaction. Without an affidavit of the assistant manager, an affidavit from the investigator, a copy ofany investigative report, or a copy of a statement obtained from its insured, the plaintiff failed tosupport its claimed explanation with proof the investigation was necessary and diligentlyperformed (see Matter of TempleConstr. Corp. v Sirius Am. Ins. Co., 40 AD3d 1109 [2007]; see also Matter of Allstate Ins. Co. vSwinton, 27 AD3d 462 [2006]; Republic Franklin Ins. Co. v Pistilli, 16 AD3d 477 [2005]). Rivera,J.P., Covello, Angiolillo and Dickerson, JJ., concur.