Opinion
February 18, 1971
Judgment of Supreme Court, New York County, entered June 5, 1969, unanimously reversed, on the law and the facts, and judgment directed in favor of plaintiff-appellant, declaring that each of the defendants-appellants Cosmopolitan Mutual Insurance Company and Aetna Casualty Surety Company is obligated to defend plaintiff-appellant in an action pending in Supreme Court, New York County, against plaintiff-appellant and defendant-respondent Thrift-U-Drive, Inc., as defendants, wherein defendant Warnock is plaintiff, and to pay any judgment against plaintiff-appellant in said action to the extent required by the policy of insurance issued by defendant-respondent Cosmopolitan to defendant-respondent Thrift-U-Drive, Inc., and the policy of insurance issued by defendant-respondent Aetna to plaintiff-appellant, and the couterclaim for indemnity of defendant-respondent Cosmopolitan dismissed. Plaintiff-appellant shall recover of respondents $50 costs and disbursements of this appeal. Defendants insurance companies have disclaimed liability, by reason of notification not "as soon as practicable" by plaintiff of an accident in which Warnock is said to have been injured by a car, driven by plaintiff and rented from Thrift-U-Drive, covered by Cosmopolitan's policy to the renter. Aetna's involvement derives from its policy issued directly to plaintiff on his own car, by which plaintiff is afforded excess insurance on a rented car over that provided by the renter. The trial court's decision fairly states the chronology essential to an understanding of the problem presented. The accident, a "pedestrian knock-down," occurred in the early hours of November 1, 1963, and plaintiff was told by a police officer at the scene that, being minor, it need not be reported. He did, however, report it orally that evening to the night manager of the renter's branch in Brooklyn from which he had obtained the car, repeating the report to the day manager the next day. Plaintiff made no report to the main office of the renter, the address of which, in Hempstead, was on the rental agreement; nothing appeared on that agreement concerning the insurance carrier's identity. Served by Warnock with a summons on December 21, he brought it to the day manager with whom he had previously dealt, who sent him to another office of the renter in Brooklyn, where he was told, because of lack of report forms, to return the following week. He did so, and was told to return again, which he did on January 2, 1964, and filled out the report form. In the interval, he had notified the broker through whom he had gotten his own policy, though he did not know or believe Aetna was involved. Cosmopolitan received the report forthwith, and its adjuster took plaintiff's statement on January 8. On May 15, 1964, Cosmopolitan notified plaintiff of disclaimer, charging unreasonable delay in notification. Being so notified, plaintiff went at once to his broker, who wrote to Aetna, which, on September 29, also disclaimed because of unreasonable delay. We find that the trial court attached undue significance to the Hempstead address on the agreement and to the assurance given plaintiff by the policeman that "it was not necessary to report this accident because it was so minor." Continuing: "In that frame of mind, it is apparent that plaintiff undertook to decide for himself that the pedestrian was not injured and for that reason it was not necessary to make a report of the accident to anyone. Plaintiff's difficulty stems from the foregoing untenable position he took with regard to the accident, to wit, that it was not necessary to report it, and that he was not injured." Further: "plaintiff knew * * * that he was required to give proper notice * * * at least to the owner * * * at the address [Hempstead] given at the top of the rental agreement. This he failed to do." However, he did give notice, twice, promptly, at the place where he dealt with the renter, and it was obvious that no significance was attached to the Hempstead address because, after plaintiff was served, and he again promptly notified the renter, he was sent to another address in Brooklyn. None of the delay in notice was his doing. As to Aetna, he did all that a person of limited education and understanding could do: he told the broker. (See National Grange Mut. Ins. Co. v. Malone, 21 A.D.2d 881, affd. 15 N.Y.2d 1025.) In any event, both insurers delayed notice of disclaimer an unreasonable length of time in the circumstances shown, and the disclaimers consequently are invalid. (Insurance Law, § 167, subd. 8; Allstate Ins. Co. v. Gross, 31 A.D.2d 389, affd. 27 N.Y.2d 263.)
Concur — Stevens, P.J., McGivern, Markewich and Tilzer, JJ.