Opinion
September 30, 1991
Appeal from the Supreme Court, Queens County (Smith, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
It is well settled that an insurance carrier may not disclaim liability if it fails to give the insured timely notice of the disclaimer "as soon as is reasonably possible after it first learns of the accident or grounds for disclaimer of liability or denial of coverage" (Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 1029; New York Cent. Mut. Fire Ins. Co. v. Markowitz, 147 A.D.2d 461, 462). Moreover, the foregoing rule is applicable even if the insured or the injured claimant has in the first instance failed to provide the carrier with timely notice of an accident (New York Cent. Mut. Fire Ins. Co. v. Markowitz, supra; Matter of Aetna Cas. Sur. Co. v. Rodriguez, 115 A.D.2d 418, 420). This is particularly true where, as here, the sole ground for disclaiming was predicated upon the insured's failure to notify its carrier of the accident, and the ground for disclaiming liability was readily apparent to the carrier when it received notice of the accident (cf., New York Cent. Mut. Fire Ins. Co. v Markowitz, supra). Moreover, the record does not contain any explanation by the carrier for its delay in disclaiming. Where there is no explanation given by a carrier, a delay of two months in providing such notice is unreasonable as a matter of law (see, Hartford Ins. Co. v. County of Nassau, supra).
With respect to the carrier's assertion that a triable issue of fact exists as to when it was first notified of the accident, we note that that contention was raised for the first time on appeal, and is therefore not properly before this court. "An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance" (Fresh Pond Rd. Assocs. v. Estate of Schacht, 120 A.D.2d 561; see also, First Intl. Bank v. Blankstein Son, 59 N.Y.2d 436, 447). Thompson, J.P., Bracken, Rosenblatt and O'Brien, JJ., concur.