Varella v. AMERICAN TRANSIT INSURANCE COMPANY
Decision Date | 23 June 2003 |
Citation | 306 A.D.2d 464,762 N.Y.S.2d 253 |
Parties | LAFRED VARELLA, Appellant,<BR>v.<BR>AMERICAN TRANSIT INSURANCE COMPANY, Respondent. |
Court | New York Supreme Court — Appellate Division |
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 NY2d 836, 837 [1996]; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029 [1979]; Uptown Whole Foods v Liberty Mut. Fire Ins. Co., 302 AD2d 592, 593 [2003]; McGinnis v Mandracchia, 291 AD2d 484, 485 [2002]; City of New York v Northern Ins. Co. of N.Y., 284 AD2d 291 [2001]). 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 NY2d 943, 944 [1984]; St. Clare's Hosp. v Allcity Ins. Co., 201 AD2d 718, 719 [1994]; Anchor Sav. Bank v Alpha Developers, 143 AD2d 711, 713-714 [1988]; Quantum Heating Servs. v Austern, 100 AD2d 843, 844 [1984]). 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 Mut. 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 AD2d 703, 704 [1989]). Accordingly, the plaintiff's motion for summary judgment to recover the unsatisfied judgment from the defendant should have been granted.
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