Opinion
January 18, 2001.
Appeal from that part of an order of the Supreme Court (Cobb, J.), entered October 15, 1999 in Columbia County, which denied a motion by defendant Hanover Insurance Company for summary judgment seeking to disclaim coverage for defendants Kara K. Keeler and Brennan Keeler under a certain exclusion in an insurance policy.
Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ.
Roe, Shantz Iacono (Samuel J. Glover of counsel), Liverpool, for appellant.
Dreyer Boyajian (Donald W. Boyajian of counsel), Albany, for Semis K. Kokonis, respondent.
MEMORANDUM AND ORDER
The origin of this declaratory judgment action is a March 1998 automobile accident. On that day, defendant Kara K. Keeler was driving a car owned by her brother, defendant Brennan Keeler, when she collided with plaintiff's motorcycle seriously injuring him. Both Kara Keeler and Brennan Keeler lived with their parents at the time of the accident. Plaintiff now seeks a declaration that any damages in excess of the policy limits under Brennan Keeler's automobile insurance policy are recoverable under an umbrella policy issued to their father, defendant Paul J. Keeler Jr., by defendant Hanover Insurance Company.
The sole issue before this Court, as expressly limited by the notice of appeal filed by Hanover (see, CPLR 5515; see also, City of Mount Vernon v. Mount Vernon Hous. Auth., 235 A.D.2d 516, 516-517), is the propriety of Supreme Court's order denying it summary judgment based on its finding that a particular disclaimer of coverage was untimely. No matter how meritorious Hanover's claim, now pressed on appeal, that neither Brennan Keeler nor Kara Keeler was an "insured" as defined under the policy, this Court is powerless to address such claim since Hanover expressly limited its notice of appeal to another issue. Hanover's notice of appeal was limited solely to that part of Supreme Court's order denying summary judgment "on the basis that the disclaimer of coverage found in exclusion nineteen (19) of the policy was untimely" (see,Clifford R. Gray Inc. v. City School Dist. of Albany, ___ A.D.2d ___, 716 N.Y.S.2d 795; Robertson v. Little Rapids Corp., ___ A.D.2d ___, 715 N.Y.S.2d 482; Millard v. City of Ogdensburg, 274 A.D.2d 953; Hemmings v. St. Marks Hous. Assoc., Phase II, 272 A.D.2d 442; Battipaglia v. Barlow, 107 A.D.2d 1001, 1003).
Turning to the narrow issue thus presented, we find that Supreme Court properly determined that Hanover waived its right to disclaim under this particular exclusion because it failed to include it as a basis for disclaimer in an earlier disclaimer letter sent on January 6, 1999. This earlier letter stated that the disclaimer of coverage was based on its determination that neither Brennan Keeler nor Kara Keeler was an "insured" as that term is defined under the umbrella policy. Specifically, Hanover claimed that the testimony of Brennan Keeler and Kara Keeler at a December 23, 1998 examination under oath confirmed that the vehicle which Kara Keeler was driving on the day of the accident was owned by Brennan Keeler and was furnished for her regular use. As such, Hanover explained that under those circumstances, neither was an insured under their father's policy. By letter dated April 26, 1999, Hanover reaffirmed its disclaimer of coverage by reasserting that neither Brennan Keeler nor Kara Keeler was an "insured" under the policy. However, for the first time, it asserted "further support" for its disclaimer, namely, that a particular policy exclusion also precluded coverage. By failing to include this exclusion as a ground for disclaimer in the original disclaimer letter, Hanover waived any defense based on the exclusion (see, Agoado Realty Corp. v. United Intl. Ins. Co., 260 A.D.2d 112, 118, mod 95 N.Y.2d 141; Haslauer v. North Country Adirondack Coop. Ins. Co., 237 A.D.2d 673, 674-675; Cain v. Allstate Ins. Co., 234 A.D.2d 775, 776; Allstate Ins. Co. v. Moon, 89 A.D.2d 804, 806; see also, General Acc. Ins. Group v. Cirucci, 46 N.Y.2d 862, 864).
Even if we were to find no waiver on the part of Hanover, we would nevertheless find that its disclaimer based on this exclusion was in any event untimely as a matter of law. Hanover failed to advance any justification or explanation for the delay in disclaiming on this ground (see, Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028; Mohawk Minden Ins. Co. v. Ferry, 251 A.D.2d 846; Dependible Janitorial Servs. v. Transcontinental Ins. Co., 212 A.D.2d 946, lv denied 85 N.Y.2d 811). Since the second disclaimer letter was issued four months after Hanover deposed Brennan Keeler and Kara Keeler when it was informed of all the facts necessary to invoke the exclusion, its disclaimer on this basis was untimely (see, Hartford Ins. Co. v. County of Nassua, supra; Gill v. Gouchie, 210 A.D.2d 954, lv denied 86 N.Y.2d 701; National Cas. Co. v. Levittown Events, 191 A.D.2d 543; Cassara v. Nationwide Mut. Ins. Co., 144 A.D.2d 974).
Cardona, P.J., Mercure, Peters and Spain, JJ., concur.
ORDERED that the order is affirmed, with costs.