Opinion
August 25, 1997
Appeal from the Supreme Court, Nassau County (Murphy, J.).
Ordered that the judgment is affirmed, with costs.
Although the Supreme Court improperly applied Insurance Law § 3420 (d) to the facts of this case (see, Brown v. State Farm Ins. Co., 237 A.D.2d 476), the delay in disclaiming coverage was excessive, and without any excuse. The plaintiff did not disclaim until discovery was complete and the action appeared on the calendar for trial. The defendant Michael O'Brien claimed that, since the plaintiff controlled the defense of the underlying action, certain counterclaims which O'Brien could have asserted were not asserted, "in reliance upon" the plaintiff's defense. The plaintiff made no effort to refute these assertions of prejudice, nor does it claim on appeal that it is entitled to a hearing on the question of prejudice. Accordingly, the disclaimer is invalid (see, Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., 152 A.D.2d 62).
Bracken, J.P., O'Brien, Santucci, Friedmann and Goldstein, JJ., concur.