Opinion
April 8, 1996
Appeal from the Supreme Court, Nassau County (Brucia, J.).
Ordered that the appeal of the defendant Andrew Burr, Jr., from the decision dated August 2, 1994, is dismissed, without costs or disbursements, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the judgment is reversed, on the law and the facts, without costs or disbursements, and it is declared that the plaintiff carrier is obligated to defend and indemnify the defendant Andrew Burr, Sr., in the underlying action entitled Burr v. Burr (Index No. 5332/89) pursuant to the terms of the policy of insurance issued to the defendant Andrew Burr, Sr.
It is well settled that in order to disclaim coverage on the ground of an insured's lack of cooperation, the carrier must demonstrate that (1) it acted diligently in seeking to bring about the insured's cooperation, (2) the efforts employed by the carrier were reasonably calculated to obtain the insured's cooperation, and (3) 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; State Farm Fire Cas. Co. v. Imeri, 182 A.D.2d 683). To this end, the plaintiff carrier, Commercial Union Insurance Company (hereinafter Commercial Union), was required to sustain the very heavy burden of demonstrating that the insured's alleged failure to cooperate was deliberate ( see, Mount Vernon Fire Ins. Co. v. 170 E. 106th St. Realty Corp., 212 A.D.2d 419). Commercial Union failed to meet this burden in the present case.
The record supports a finding that Commercial Union undertook diligent efforts which were reasonably calculated to bring about the insured's cooperation (see, e.g., State Farm Fire Cas. Co. v. Imeri, supra) inasmuch as it attempted to contact the insured, personally and by mail, on numerous occasions over a period of several months, and even retained the services of a private investigation firm for this purpose. However, the report prepared by the private investigation firm, which was properly admitted into evidence, demonstrates that the insured did in fact timely respond to the final notice sent by Commercial Union, provided an explanation for his previous unavailability, and pledged his full cooperation with the investigation. Given these circumstances, Commercial Union could not disclaim coverage even if we were to accept its dubious contention that the insured's previous unexplained failure to respond constituted compelling evidence of willful and deliberate noncooperation ( see generally, Matter of Empire Mut. Ins. Co. [Stroud], 36 N.Y.2d 719; Thrasher v. United States Liab. Ins. Co., supra; Pawtucket Mut. Ins. Co. v. Soler, 184 A.D.2d 498; Hanover Ins. Co. v. DeMato, 143 A.D.2d 807; Matter of Statewide Ins. Co. v Ray, 125 A.D.2d 573).
Additionally, contrary to the contention of the appellant Andrew Burr, Jr., the judgment appealed from does not contain any provision dismissing or otherwise disposing of the underlying negligence action. Balletta, J.P., Sullivan, Joy and Krausman, JJ., concur.