Opinion
February 6, 1978
In an action to declare, inter alia, that the plaintiff insurer is not obligated to defend or indemnify defendant Priestley in a wrongful death action brought by the estate of his wife, the said defendant appeals from an order of the Supreme Court, Nassau County, dated October 20, 1976, which, upon renewal of plaintiff's motion for summary judgment, granted the motion and declared that plaintiff was not required to defend and indemnify him in the wrongful death action. Order reversed, on the law, with $50 costs and disbursements, and action remitted to Special Term for a hearing in accordance herewith. We agree that the plaintiff-respondent would not be required to defend and indemnify defendant-appellant Priestley if a timely notice of disclaimer had been given (cf. State Farm Mut. Auto. Ins. Co. v Westlake, 35 N.Y.2d 587). However, we do not believe that the record was sufficient to permit Special Term to properly determine whether, as required by statute, the plaintiff gave written notice of disclaimer of coverage as soon as was reasonably possible (see Insurance Law, § 167, subd 8). Therefore, a hearing is required to determine that question. Mollen, P.J., Damiani, Titone and Rabin, JJ., concur.