Opinion
June 17, 1993
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
Although the individual plaintiffs' liability in the underlying tort action is not alleged beyond 1987, defendant insurer did not disclaim as to them until March 1991, a delay which estops it from disclaiming coverage (Insurance Law § 3420 [d]), regardless of whether the delay caused prejudice (see, Progressive Cas. Ins. Co. v. Conklin, 123 A.D.2d 6). It is immaterial that the insurer suggested in earlier correspondence with other parties that there might at some future point be a disclaimer as to the individual plaintiffs, since a written reservation of an insurer is not a substitute for the required notice of disclaimer (Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028). Nor is the alleged failure of the individual plaintiffs to give timely notice of the claim of any moment, since timely notice of disclaimer must be given even when the reason for disclaimer is lack of timely notice by the insured (see, Kramer v. Interboro Mut. Indem. Ins. Co., 176 A.D.2d 308, lv denied 79 N.Y.2d 756).
Concur — Murphy, P.J., Rosenberger, Ross, Asch and Kassal, JJ.