Royal Indem. Co. v. Kay
| Decision Date | 10 January 1966 |
| Citation | 48 Misc.2d 1086,266 N.Y.S.2d 690 |
| Parties | ROYAL INDEMNITY CO., Plaintiff, v. Robert KAY and John Amatulli, Defendants. |
| Court | New York Supreme Court |
Patrick F. Adams, Mineola, for plaintiff, William F. Levine, Mineola, of counsel.
Samuel M. Levine, Mineola, for defendant, Amatulli.
Plaintiff insurer (hereinafter called the 'Company') demands judgment permitting it to withdraw from the defense of a lawsuit brought by John Amatulli, an injured person, against the insured, Robert Kay, in respect to an accident which occurred January 21, 1962, and permitting it to disclaim the obligation to defend or to satisfy and judgment recovered by Amatulli against Kay because of Kay's failure to cooperate with the Company.
Although the Amatulli-Kay accident occurred January 21, 1962, the Company received no notice of the accident from anyone until October 24, 1963 when it received a demand letter dated October 15, 1963 from Amatulli's present attorney.
Amatulli's attempt to show that the Company got prior notice from his earlier attorney lacked legal sufficiency. Amatulli gave no explanation for his failure to call his prior attorney as a witness to show what notice he gave the Company, and the records of the Company fail to show any notice or any other correspondence concerning the accident prior to October 24, 1963. Amatulli merely testified that he saw a letter dated April 26, 1962, addressed to the Company, that his prior attorney had moved to Rochester, New York, and that before he did so this attorney gave Amatulli his file with a suggestion that he turn it over to another lawyer. All this was not enough to prove prior notice to the Company.
In the meantime, on October 19, 1963, Amatulli served Kay by serving the Secretary of State and by sending a copy to the Company. On February 4, 1964 the Company served its answer and demanded a bill of particulars.
Also, in the meantime the Company tried to find Kay. On October 26, 1963, the Company assigned a staff adjuster to locate Kay, but without success. On January 31, 1964 and February 4, 1964, the Company wrote to Kay at all known addresses, but the letters were returned and tax lien files, Kay still could not be found.
On July 2, 1964 the Company moved to withdraw from the defense of the Amatulli v. Kay action, but the motion was denied on December 1, 1964, with leave to renew.
On February 1, 1965 the Company started the present action against Amatulli and Kay. Amatulli duly served his answer.
On March 16, 1965 Amatulli served the Company with a bill of particulars in his action against Kay. On July 26, 1965 the Company, in the Amatulli v. Kay action, notified Amatulli to serve his note of issue for trial, pursuant to CPLR 3216, or the Company would move to dismiss that action for failure to prosecute.
The present suit by the Company against Kay and Amatulli for permission to disclaim is now before me for decision.
The failure of the insured, Kay, to give the Company notice as soon as reasonably possible, and the failure of Kay, to cooperate with the Company, nothing else being shown, permits the Company to disclaim and to vitiate the policy against the insured and the injured person, Amatulli. (Deso v. London & Lancashire Ind. Co., 3 N.Y.2d 127, 164 N.Y.S.2d 689, 143 N.E.2d 889; Rushing v. Commercial Casualty Ins. Co., 251 N.Y. 302, 167 N.E. 450; Haas Tobacco Co. v. American Fidelity, 226 N.Y. 343, 123 N.E. 755, 13 A.L.R. 132; Shalita v. American Motorists Ins. Co., 266 App.Div. 131, 41 N.Y.S.2d 507, Insurance Law, Sec. 167).
However, the company, in cases such as this, must make reasonable efforts to find the insured (Kehoe v. Motorists Mutual Ins. Co., 20 A.D.2d 308, 246 N.Y.S.2d 827; Wallace v. Universal Insurance Co., 18 A.D.2d 121, 238 N.Y.S.2d 379): In this case, the Company did make reasonable efforts to find the insured, and the insured, by absenting himself as he did after the accident, failed to cooperate. And, again, nothing further being shown in favor of the insured or the injured person, the Company would have the right to disclaim and to have the policy vitiated.
The Company, too, was required to give written notice of its disclaimer promptly and within a reasonable time to the insured or to the injured person or other claimant (Appell v....
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