Opinion
March 11, 1994
Appeal from the Supreme Court, Nassau County, Robbins, J.
Present — Green, J.P., Balio, Fallon, Doerr and Boehm, JJ.
Order unanimously reversed on the law with costs and petition dismissed. Memorandum: On March 26, 1991, petitioner received notice that respondent was seeking uninsured motorist benefits. Five and a half months later, respondent demanded arbitration of his claim. By petition served September 25, 1991, petitioner commenced the instant proceeding to stay arbitration on the ground that the uninsured motorist endorsement of the policy excludes coverage of an insured who sustains injury "while operating an automobile in violation of an order of suspension."
Supreme Court erred in granting the petition. "[A]n insurance company may not disclaim liability if it fails to give the insured timely notice of disclaimer `as soon as is reasonably possible after it first learns of the accident or grounds for disclaimer of liability' (Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 1029; Kramer v. Interboro Mut. Indem. Ins. Co., 176 A.D.2d 308)" (Matter of Nationwide Mut. Ins. Co. [Steiner], 199 A.D.2d 507). Petitioner bore the burden of establishing the reasonableness of its delay in notifying respondent of its disclaimer (see, Matter of State Farm Auto. Ins. Co. [Merrill], 192 A.D.2d 824; Matter of Blee v. State Farm Mut. Auto. Ins. Co., 168 A.D.2d 615). Petitioner's attempt to explain the delay through the affidavit of counsel, who lacked personal knowledge of the facts, is insufficient to meet that burden (see, Interboro Mut. Indem. Ins. Co. v. Gatterdum, 163 A.D.2d 788, 789). Petitioner had all of the information it needed to investigate the status of respondent's driver's license when it received respondent's claim (cf., Matter of Allcity Ins. Co. [Jimenez], 78 N.Y.2d 1054). Absent evidence that it "acted either reasonably or diligently, or that it conducted an investigation of coverage", petitioner's failure to ascertain that respondent's license was suspended does not excuse the six-month delay in disclaiming coverage (Nova Cas. Co. v. Charbonneau Roofing, 185 A.D.2d 490, 492; Interboro Mut. Indem. Ins. Co. v. Gatterdum, supra).