Statewide Ins. Co. v. Ray

• Decision Date: 22 December 1986
• Citation: 509 N.Y.S.2d 642,125 A.D.2d 573
• Parties: In the Matter of STATEWIDE INSURANCE COMPANY, Appellant, v. William RAY, Jr., Respondent, Allstate Insurance Company, Additional Respondent.
• Court: New York Supreme Court — Appellate Division

Page 642

509 N.Y.S.2d 642

125 A.D.2d 573

In the Matter of STATEWIDE INSURANCE COMPANY, Appellant, v. William RAY, Jr., Respondent, Allstate Insurance Company, Additional Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 22, 1986.

Shayne, Dachs, Stanisci & Corker, Mineola (Norman H. Dachs and Babette Yabon, on the brief), for appellant.

Benjamin Purvin, Lake Success (Charles F. Brady, of counsel), for additional respondent.

Before MANGANO, J.P., and BRACKEN, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 75 to stay arbitration, the petitioner Statewide Insurance Company appeals from an order of the Supreme Court, Nassau County (Robbins, J.), entered October 1, 1985, which denied the application.

ORDERED that the order is reversed, with costs, and that branch of the petitioner Statewide Insurance Company's petition which sought a stay of arbitration is granted.

For an insurer to disclaim its liability to its insured on the ground of lack of cooperation, the insurer must demonstrate (1) that it acted diligently in seeking to bring about the insured's cooperation, (2) that the efforts employed by the insurer were reasonably calculated to obtain the insured's cooperation, and (3) that the attitude of the insured, after his cooperation was sought, was one of willful and avowed obstruction (see, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 168-169, 278 N.Y.S.2d 793, 225 N.E.2d 503). Even assuming that the hearsay testimony adduced at the trial by witnesses Mauro and Kunstler was admissible to demonstrate diligence, Allstate has failed to establish a right to disclaim.

The record reveals that there was insufficient proof of all three Thrasher prongs. Allstate Insurance Company failed to establish that it was sufficiently diligent (see, Alexander v. Stone, 45 A.D.2d 216, 357 N.Y.S.2d 271; Wallace v. Universal Ins. Co., 18 A.D.2d 121, 238 N.Y.S.2d 379, affd. 13 N.Y.2d 978, 244 N.Y.S.2d 779, 194 N.E.2d 688), or that its efforts were reasonably calculated to obtain its insured's cooperation (see, Coleman v. National Grange Mut. Ins. Co., 28 A.D.2d 1073, 1074, affd. 23 N.Y.2d 836, 297 N.Y.S.2d 737, 245 N.E.2d 406; National Grange Mut. Ins. Co. v. Lococo, 20 A.D.2d 785, 248 N.Y.S.2d 150, affd. 16 N.Y.2d 585, 261 N.Y.S.2d 50, 209 N.E.2d 99). Further, the nonaction of the insured, which is the only factual basis in this case, cannot in this instance be escalated into a finding of ...