Turnquest v. Smalls

26 A.D.2d 841, 274 N.Y.S.2d 451, 1966 N.Y. App. Div. LEXIS 3179

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1966
• Status: Published

Opinion

In an action for a declaratory judgment, defendant Empire Mutual Insurance Company appeals from a judgment of the Supreme Court, Queens County, entered July 20, 1965, after a non jury trial, which inter alia adjudged and declared (1) the invalidity of appellant’s disclaimer of liability upon an automoble liability insurance policy it had issued to defendant Smalls and (2) that appellant is required to defend defendant Smalls against plaintiffs’ claims. Judgment affirmed, with one bill of costs payable to respondents jointly. We agree with the determination of the trial court that plaintiffs gave notice of the accident to appellant as soon as it was reasonably possible to do so (cf. Lauritano v. American Fid. Fire Ins. Co., 3 A D 2d 564, affd. 4 N Y 2d 1028). We are also of the opinion that, in any event, appellant waived the claim of untimely notice by reason of its failure to disclaim liability until July or August, 1964, although it had actual notice of plaintiffs’ claim since at least December 5, 1963 (Cohen v. Atlantic Nat. Ins. Co., 24 A D 2d 896). We are further of the opinion that an action for a declaratory judgment is an appropriate remedy to determine the controversy between the parties (Shukry v. Johnsson, 17 A D 2d 835). In any event, it is our view that by participating in the action in the trial court and in joining in the submission on an agreed statement of facts, all without objection, appellant waived its right to question on appeal the appropriateness of that remedy (cf . Sanderson v. Newark Ins. Co., 20 A D 2d 961). Beldock, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.