Summary
finding disclaimer valid so long as it "identified the applicable policy exclusion and set forth the factual basis for the insurer's position that the claim fell within a policy exclusion with sufficient specificity to satisfy the statutory mandate and purpose"
Summary of this case from Old Republic Gen. Ins. Corp. v. Century Sur. Co.Opinion
December 21, 1990
Appeal from the Supreme Court, Onondaga County, Hayes, J.
Present — Callahan, J.P., Denman, Green, Balio and Davis, JJ.
Order and judgment unanimously affirmed without costs. Memorandum: The notice of disclaimer delivered to plaintiff in 1983, although it misquoted the language of an exclusion in the policy, identified the applicable policy exclusion and set forth the factual basis for the insurer's position that the claim fell within a policy exclusion with sufficient specificity to satisfy the statutory mandate and purpose (see, Insurance Law § 3420 [d]; General Acc. Ins. Group v. Cirucci, 46 N.Y.2d 862, 864; John v. Centennial Ins. Co., 91 A.D.2d 1104, 1105, lv. denied 59 N.Y.2d 605). The duty to disclaim is distinct from the duty to defend, and the duty to disclaim is satisfied when the insurer provides a notice of disclaimer "as soon as is reasonably possible after it first learns of the accident or of grounds for disclaimer of liability" (Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 1029, rearg denied 47 N.Y.2d 951; see also, Allstate Ins. Co. v. Moon, 89 A.D.2d 804, 806; Foremost Ins. Co. v. Rios, 85 A.D.2d 677, lv. denied 55 N.Y.2d 607). The duty to disclaim was satisfied in the subject case when the insurer forwarded the 1983 notice.
The remaining issue, raised by plaintiff for the first time on appeal, is not properly before us, and, in any event, is without merit.