Opinion
March 16, 1990
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, J.P., Pine, Lawton, Davis and Lowery, JJ.
Order, insofar as appealed from, unanimously modified on the law and as modified affirmed with costs, in accordance with the following memorandum: In this declaratory judgment action, we agree with the court's conclusion that plaintiff's disclaimer of coverage was untimely as a matter of law (Insurance Law § 3420 [d]; Hartford Ins. Co. v County of Nassau, 46 N.Y.2d 1028, 1029, rearg denied 47 N.Y.2d 951; New York Cent. Mut. Fire Ins. Co. v Markowitz, 147 A.D.2d 461, 462; Cassara v Nationwide Mut. Ins. Co., 144 A.D.2d 974; Progressive Cas. Ins. Co. v Conklin, 123 A.D.2d 6, 8-9; Hartford Acc. Indem. Co. v J.J. Wicks, Inc., 104 A.D.2d 289, 293, appeal dismissed 65 N.Y.2d 691; Zook v Hartford Acc. Indem. Co., 64 A.D.2d 701, 702). We nonetheless modify in order to declare the rights of the parties (Lanza v Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Plaintiff is obligated to defend and indemnify defendant Leisure Rinks in the underlying action.