Allstate Insurance v. Macaluso

217 A.D.2d 424, 628 N.Y.S.2d 701, 1995 N.Y. App. Div. LEXIS 7643

Opinion

Order and judgment (one paper), Supreme Court, New York County (Paula Omansky, J.), entered on or about April 1, 1994, which granted defendants-respondents’ motion for summary judgment, and declared that plaintiff insurer is obligated to defend and indemnify defendant insured in an action for personal injuries brought against him by defendants-respondents, unanimously affirmed, with costs.

Plaintiff’s delay in disclaiming coverage based on the exclusion for vehicles for hire in the subject policy was unreasonable as a matter of law (see, Hartford Ins. Co. v County of Nassau, 46 NY2d 1028). Defendants-respondents’ complaint in the underlying action, served more than 19 months before plaintiff’s notice of disclaimer, and the affidavit from defendant-respondent’s physician in the underlying action, served almost a year before plaintiff’s notice of disclaimer, were all very clear in describing the vehicle in which defendant-respondent was a passenger as a livery car, and more than adequate to put plaintiff on notice that its insured’s original statement to the contrary was probably false and that a disclaimer was all but certain. Under the circumstances, it was unreasonable for plaintiff to await the insured’s deposition without taking other, more prompt steps to investigate the question of coverage (see, Allstate Ins. Co. v Gross, 27 NY2d 263, 270). Concur—Sullivan, J. P., Wallach, Williams and Mazzarelli, JJ.