Opinion
2003-01459
Submitted May 21, 2003.
June 23, 2003.
In an action pursuant to Insurance Law § 3420(a)(2) to recover an unsatisfied judgment against the defendant's insured, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated January 21, 2003, which denied his motion for summary judgment.
Jose R. Mendez, P.C., Rego Park, N.Y., for appellant.
Marjorie E. Bornes, New York, N.Y., for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is granted.
Insurance Law § 3420(d) requires written notice of a disclaimer to be given "as soon as is reasonably possible" after the insurer learns of the grounds for disclaimer of liability (see Matter of Firemen's Fund Ins. Co. of Newark v. Hopkins, 88 N.Y.2d 836, 837; Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 1029; Uptown Whole Foods v. Liberty Mut. Fire Ins. Co., 302 A.D.2d 592, 593; McGinnis v. Mandracchia, 291 A.D.2d 484, 485; City of New York v. Northern Ins. Co. of N.Y., 284 A.D.2d 291). The plaintiff submitted an affidavit of service by mail, dated March 22, 2002, of a judgment entered in his favor and against the insured. The defendant's claims manager did not deny receiving the judgment. The plaintiff's affidavit of service raised a presumption that a proper mailing occurred, and the defendant's papers failed to raise an issue of fact regarding service of the judgment (see Engel v. Lichterman, 62 N.Y.2d 943, 944; St. Clare's Hosp. v. Allcity Ins. Co., 201 A.D.2d 718, 719; Anchor Sav. Bank v. Alpha Developers, 143 A.D.2d 711, 713-714; Quantum Heating Servs. v. Austern, 100 A.D.2d 843, 844). The defendant's delay of more than three months in disclaiming coverage on the ground of late notice of the underlying lawsuit in July 2002 was unreasonable as a matter of law (see Uptown Whole Foods v. Liberty Mutual Fire Ins. Co., supra; McGinnis v. Mandracchia, supra; City of New York v. Northern Ins. Co. of N.Y., supra; Matter of State Farm Mut. Ins. Co. v. Pizzonia, 147 A.D.2d 703, 704). Accordingly, the plaintiff's motion for summary judgment to recover the unsatisfied judgment from the defendant should have been granted.
SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.