Opinion
November 30, 1970
Appeal from judgment and amended judgments of the Supreme Court, entered February 17 and February 18, 1970 in Albany County, upon a decision of the court at a Trial Term. The amended judgment entered February 17 combined four judgments for the various plaintiffs entered against defendant, Lumberman's Mutual Casualty Company. The trial court held that appellant's disclaimer was invalid and that appellant was required to appear and answer various actions pending against James Wright arising out of an automobile accident on October 17, 1965. James Wright was the owner and operator of a vehicle which collided with a truck on the New York State Thruway on October 17, 1965, resulting in two deaths and personal injuries to five passengers in Wright's car. Wright was insured by appellant under an assigned risk policy which appellant has stipulated was in full force at the time of the accident. Appellant received no notice of the accident until June 7, 1966 when it received three summonses naming James Wright as defendant. On June 9, 1966 appellant notified Wright of its intention to reserve its right to disclaim. On August 17, 1966 Wright was interviewed at appellant's office. On September 20, 1966 appellant notified Wright of its intention to disclaim any liability under the policy, citing his alleged failure to comply with "Condition 2" of the policy which requires written notice of an accident "as soon as practicable". Respondents concede the insured's breach of this condition but argue that appellant's notice of disclaimer was itself untimely and therefore invalid. Pursuant to subdivision 8 of section 167 Ins. of the Insurance Law, an insurer seeking to disclaim under a liability policy delivered or issued for delivery in this State must give written notice of such disclaimer as soon as is reasonably possible. An insurance carrier may not rely upon an insured's failure to give timely notice, where the carrier itself has unreasonably delayed in making a disclaimer ( Cohen v. Atlantic Nat. Ins. Co., 24 A.D.2d 896). Appellant's reservation of rights did not free it from the obligation to give written notice as soon as reasonably possible ( Allstate Ins. Co. v. Gross, 31 A.D.2d 389). Moreover, it was sent only to defendant Wright rather than to all claimants as directed by subdivision 8 of section 167. We note that appellant received the summonses on June 7. On June 8, appellant obtained from James Wright's attorney information concerning the date and location of the accident, and on June 17, it received a State Police report concerning the accident, identifying James Wright as the driver of the automobile. It was necessarily evident to appellant at this time that its insured had been in an accident and that his failure to give written notice, constituted a breach of a condition of the contract. The delay of over three months from this date and over one month from the date of interview with its insured, was unreasonable and thus foreclosed appellant from disclaiming its liability ( Appell v. Liberty Mut. Ins. Co., 22 A.D.2d 906, affd. 17 N.Y.2d 519). Judgments affirmed, with one bill of costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.