Opinion
March 1, 1999
Appeal from the Supreme Court, Nassau County (Driscoll, J.).
Ordered that the appeal from the order dated August 8, 1997, is dismissed; and it is further,
Ordered that the appeal from the judgment and the amended judgment are dismissed, as the judgment and the amended judgment were superseded by the order dated April 8, 1998, made upon reargument; and it is further,
Ordered that the order dated April 8, 1998, is reversed insofar as appealed from, on the law, upon reargument, the plaintiffs' motion for summary judgment is granted, and the amended judgment, the judgment, and the order dated August 8, 1997, are vacated; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order dated April 8, 1998, made upon reargument, which superseded the judgment and the amended judgment ( see, CPLR 5501 [a] [1]).
Where, as here, an insurer attempts to disclaim coverage under a policy of liability insurance by invoking the terms of an exclusion in the policy, it must do so without unreasonable delay (Insurance Law § 3420 [d]; see, Planet Ins. Co. v. Bright Bay Classic Vehicles, 75 N.Y.2d 394; Nigro v. General Acc. Ins. Co., 239 A.D.2d 474; Matter of Aetna Life Cas. v. Boucher, 238 A.D.2d 414; Matter of Allstate Ins. Co. v. Ferrone, 232 A.D.2d 479; Hanover Ins. Co. v. Suffolk Overhead Door Co., 207 A.D.2d 428; Greater N.Y. Mitt. Ins. Co. v. Clark, 205 A.D.2d 857). Contrary to the conclusion of the Supreme Court, under the circumstances of this case, the defendant's unexplained failure for approximately three months to issue a disclaimer resulted in an estoppel which precludes the defendant from litigating the basis for its disclaimer in this action ( see, Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028; Nigro v. General Acc. Ins. Co., supra; Pennsylvania Millers Mut. Ins. Co. v. Sorrentino, 238 A.D.2d 491; Matter of Nationwide Mut. Ins. Co. v. Steiner, 199 A.D.2d 507). Accordingly, inasmuch as the defendant is estopped from raising the sole defense (i.e., the exclusion) it proffered in opposition to the plaintiffs' otherwise meritorious motion, the Supreme Court erred in denying the motion. Miller,
J.P., Thompson, Friedmann and Florio, JJ., concur.