Opinion
February 13, 1996
Appeal from the Supreme Court, Westchester County (Silverman, J.).
Ordered that the order is affirmed, with costs to the respondent Marlene Freehill.
The insured claims to have sustained injuries when the vehicle in which she was a passenger was struck in the rear by a second vehicle, propelling her vehicle into the rear of a third vehicle. The insured brought an action against the owner of the second vehicle, which was settled for the full limit of its bodily injury liability coverage, but did not take legal action against the owner of the third vehicle. Approximately eight months after the accident, the insured filed a claim under the Supplemental Uninsured Motorist indorsement of her policy with the appellant.
Contrary to the appellant's contentions, the duty of an insurance carrier to disclaim coverage promptly extends to those situations where the disclaimer is based upon the insured's failure to provide a timely notice of claim (see, Ward v Corbally, Gartland Rappleyea, 207 A.D.2d 342, 343; Kramer v Interboro Mut. Indem. Ins. Co., 176 A.D.2d 308; New York Cent. Mut. Fire Ins. Co. v. Markowitz, 147 A.D.2d 461). The carrier's unexplained delay of more than two years in denying coverage was unreasonable as a matter of law (see, Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 1030; Ward v. Corbally, Gartland Rappleyea, supra; Farmers Fire Ins. Co. v. Brighton, 142 A.D.2d 547, 548).
Moreover, the insured's failure to exhaust the limits of the third vehicle's bodily injury liability coverage does not defeat her claim for underinsurance based on the underinsured status of the second vehicle (see, S'Dao v. National Grange Mut. Ins. Co., 87 N.Y.2d 853; Passaro v. Metropolitan Prop. Liab. Ins. Co., 128 Misc.2d 21, affd 124 A.D.2d 647). Rosenblatt, J.P., Hart, Krausman and Goldstein, JJ., concur.