Opinion
May 5, 1997
Appeal from the Supreme Court, Suffolk County (Hall, J.),
Ordered that the judgment is affirmed, with costs.
The relevant provisions of the policy issued by the defendants to Robert Brucato are identical to those which were reviewed by the Court of Appeals in Handelsman v. Sea Ins. Co. ( 85 N.Y.2d 96). Pursuant to the holding in that case, we conclude that the bodily injury liability coverage afforded to Robert Brucato extends to the liability potentially incurred by his son, James Brucato, who, at the time of the underlying accident, was a resident in Robert Brucato's household, and who, in the underlying action, is threatened with the imposition of such liability as the result of his permissive operation of a vehicle owned by a third party ( see also, Jerge v. Buettner, 225 A.D.2d 294).
Although the defendants may have had valid grounds for disclaimer, either on the basis that James Brucato's operation of the vehicle was in connection with a business ( cf., Allstate Ins. Co. v. Kuper, 140 A.D.2d 479) or on the basis that the vehicle which he was operating had been furnished to him for his regular use ( cf., Smedes v. Liberty Mut. Ins. Co., 206 A.D.2d 814), it is virtually conceded that the defendants' unexplained failure to assert these grounds for disclaimer until approximately six months after their learning of the facts of the underlying accident precludes them from relying on these grounds as defenses in the plaintiffs' declaratory judgment action ( see, Insurance Law § 3420[d]; Matter of Firemen's Fund Ins. Co. v. Hopkins, 88 N.Y.2d 836; Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 1029; Allstate Ins. Co. v. Gross, 27 N.Y.2d 263; Matter of Nationwide Mut. Ins. Co. v. Steiner, 199 A.D.2d 507). The case of Zappone v. Home Ins. Co. ( 55 N.Y.2d 131), relied upon by the defendants for the proposition that they had no duty to disclaim with reasonable promptness, is distinguishable from the facts presented in this case for the same reasons that it was explicitly distinguished by the Court of Appeals in Handelsman v Sea Ins. Co. (supra, 85 N.Y.2d, at 101-102; see also, Crull v State Farm Fire Cas. Co., 225 A.D.2d 1071).
Bracken, J.P., Ritter, Sullivan and Pizzuto, JJ., concur.