Meilutis v. Commercial Union Insurance

251 A.D.2d 1015, 674 N.Y.S.2d 234, 1998 N.Y. App. Div. LEXIS 7039

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment because there is an issue of fact whether defendant’s delay of one month in disclaiming coverage was reasonable (see, Utica Fire Ins. Co. v Spagnolo, 221 AD2d 921; see also, Wilczak v Ruda & Capozzi, 203 AD2d 944, 945).

The court also properly denied plaintiff’s cross motion for summary judgment. We agree with plaintiff that defendant waived the defense of breach of conditions precedent by failing to deny with sufficient particularity the allegation in the complaint that plaintiff complied with the condition precedent of providing timely notice of the occurrence to defendant (see, Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 218). It does not follow, however, that the waiver renders defendant’s disclaimer of coverage ineffective as a matter of law. Defendant has also disclaimed coverage based upon a policy exclusion. (Appeals from Order of Supreme Court, Monroe County, Bergin, J. — Summary Judgment.) Present— Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.