Opinion
April 10, 1978
In a special proceeding to stay arbitration pending a trial on the issue of the validity of a disclaimer of insurance coverage by respondent Aetna Life Casualty Company, the petitioner appeals from a judgment of the Supreme Court, Kings County, dated July 9, 1976, which, after a nonjury trial, determined that the disclaimer was valid and vacated an order which had temporarily stayed the arbitration. Judgment reversed, on the law, with costs to petitioner payable by respondent Aetna Life Casualty Company, the disclaimer is determined to be invalid and the application to stay arbitration is granted. Respondent Aetna Life Casualty Company, in its original letter of disclaimer, failed to assert the alleged unreasonable delay by claimants-respondents in giving notice of the occurrence. Aetna cannot now assert that delay as the basis for its disclaimer (see Appell v Liberty Mut. Ins. Co., 22 A.D.2d 906, affd 17 N.Y.2d 519). Moreover, the right of an injured third-party to recover exists independently of the insured's obligation to provide notice (Lauritano v American Fid. Fire Ins. Co., 3 A.D.2d 564, affd 4 N.Y.2d 1028). There is also no evidence that the insured "willful[ly] and avowed[ly]" obstructed the respondent-insurer's investigation thereby supporting the defense of lack of co-operation (see Thrasher v United States Liab. Ins. Co., 19 N.Y.2d 159, 168). Martuscello, J.P., Titone, Suozzi and Cohalan, JJ., concur.