Opinion
December 23, 1994
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Balio, J.P., Lawton, Fallon, Wesley and Doerr, JJ.
Judgment unanimously reversed on the law without costs, cross motion denied, motion granted and judgment granted in accordance with the following Memorandum: Supreme Court erred in granting the cross motion of third-party defendant, Zurich American Insurance Group (Zurich), for summary judgment declaring that it was not obligated to defend or indemnify plaintiff, Robert Gill, in a personal injury action brought against Gill by David A. Gouchie, defendant-third-party plaintiff. Zurich's policy provided coverage for the use of any automobile by family members living at home. Consequently, coverage existed under the policy and Zurich was relying upon an exclusion, use of the automobile without permission, to deny coverage. Under those circumstances, Zurich had an obligation to disclaim timely (see, Planet Ins. Co. v Bright Bay Classic Vehicles, 75 N.Y.2d 394, rearg denied 76 N.Y.2d 773; Greater N Y Mut. Ins. Co. v Clark, 205 A.D.2d 433; cf., Zappone v Home Ins. Co., 55 N.Y.2d 131, 138-139).
We conclude that Zurich's disclaimer was untimely. Zurich was in possession of all of the facts necessary to invoke the exclusion in its policy for non-permissive use, at the latest, on April 14, 1993, when this Court held that Gill was not a permissive user of the Gouchie vehicle as a matter of law (see, Allstate Ins. Co. v Gill, 192 A.D.2d 1123). Zurich's disclaimer in June 1993, over two months later, was untimely as a matter of law (see, Alice J. v Joseph B., 198 A.D.2d 846, 847; National Cas. Co. v Levittown Events, 191 A.D.2d 543, 544; Farmers Fire Ins. Co. v Brighton, 142 A.D.2d 547, 548). Thus, we grant the motion of third-party plaintiff, in which plaintiff joined, and grant judgment in favor of third-party plaintiff declaring that Zurich is obligated to defend Gill in the personal injury action brought against him by David A. Gouchie.