| Felice v Chubb & Son, Inc. |
| 2009 NY Slip Op 08584 [67 AD3d 861] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Madeline Felice et al., Respondents-Appellants, v Chubb& Son, Inc., et al., Appellants-Respondents. |
—[*1] Goidel & Siegel, LLP, New York, N.Y. (Andrew B. Siegel of counsel), forrespondents-appellants.
In an action for a judgment declaring that the defendants are obligated to defend andindemnify the plaintiffs in an underlying wrongful death action entitled Zaccaria vPlagianakos, pending in the Supreme Court, Kings County, under index No. 30675/07, thedefendants appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Ruchelsman, J.), dated March 18, 2008, as denied their motion for summaryjudgment, and the plaintiffs cross-appeal from so much of the same order as denied their motionfor summary judgment.
Ordered that the order is affirmed, without costs or disbursements.
An insurance carrier must give timely notice of a disclaimer "as soon as is reasonablypossible" after it first learns of the accident or grounds for disclaimer of liability (Insurance Law§ 3420 [d] [2]; see PawleyInterior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d 595 [2004]; Mount VernonHous. Auth. v Public Serv. Mut. Ins. Co., 267 AD2d 285, 285-286 [1999]). It is theinsurance carrier's burden to explain the delay in notifying the insured or injured party of itsdisclaimer, and the reasonableness of any such delay must be determined from the time theinsurance carrier was aware of sufficient facts to disclaim coverage (see Pawley InteriorContr., Inc. v Harleysville Ins. Cos., 11 AD3d at 595; Prudential Prop. & Cas. Ins. vPersaud, 256 AD2d 502, 504 [1998]). Further, the issue of whether a disclaimer wasunreasonably delayed is generally a question of fact, requiring an assessment of all relevantcircumstances surrounding a particular disclaimer (see Continental Cas. Co. v Stradford, 11 NY3d 443, 449 [2008];First Fin. Ins. Co. v Jetco Contr.Corp., 1 NY3d 64, 69 [2003]; Mount Vernon Hous. Auth. v Public Serv. Mut. Ins.Co., 267 AD2d at 286). Cases in which the reasonableness of an insurer's delay may bedecided as a matter of law are exceptional and present extreme circumstances (seeContinental Cas. Co. v Stradford, 11 NY3d at 449; Hartford Ins. Co. v County ofNassau, 46 NY2d 1028, 1030 [1979]; Allstate Ins. Co. v Gross, 27 NY2d 263, 270[1970]). We agree with the Supreme Court that there is a question of fact as to whether thedefendants' disclaimer was unreasonably delayed (see Pawley Interior Contr., Inc. vHarleysville Ins. Cos., 11 AD3d at 596; Mount Vernon Hous. Auth. v Public Serv. Mut.Ins. Co., 267 AD2d at 286). Rivera, J.P., Fisher, Belen and Austin, JJ., concur.