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United States Fidelity Guaranty v. Weiri

Appellate Division of the Supreme Court of New York, Second Department
Oct 4, 1999
265 A.D.2d 321 (N.Y. App. Div. 1999)

Opinion

Submitted June 23, 1999

October 4, 1999

In an action, inter alia, for a judgment declaring that the plaintiff has no duty to defend and indemnify the defendant Franklin Weiri in an action entitled Nyugen v. Weiri, pending in the Supreme Court, Queens County, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Golia, J).


ORDERED that the order is affirmed insofar as appealed from, with costs.

The motion for summary judgment was properly denied. The Supreme Court correctly found that although the defendant Franklin Weiri failed to provide his insurer, the plaintiff United States Fidelity and Guaranty Co. (hereinafter USFG), with timely notice of the occurrence which is the basis of the underlying action against him ( see, Rushing v. Commercial Cas. Ins. Co., 251 N.Y. 302; Quinlan v. Providence Washington Ins. Co., 133 N.Y. 356; Reina v. United States Cas. Co., 228 App. Div. 108, affd 256 N.Y. 537), USFG's unexplained delay of almost six months in disclaiming coverage was unreasonable as a matter of law ( see, Matter of Firemen's Fund Ins. Co. of Newark v. Hopkins, 88 N.Y.2d 836; Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028). However, because the underlying action does not involve death or bodily injury, USFG's untimely disclaimer of coverage will be given effect unless Weiri can demonstrate prejudice as a result of the unreasonable delay in disclaiming coverage ( see, Incorporated Vil. of Pleasantville v. Calvert Ins. Co., 204 A.D.2d 689, 690; Greater N.Y. Sav. Bank v. Travelers Ins. Co., 173 A.D.2d 521). A triable issue of fact exists as to whether Weiri suffered prejudice as a result of the unexplained delay of USFG in disclaiming coverage.

BRACKEN, J.P., THOMPSON, GOLDSTEIN, and McGINITY, JJ., concur.


Summaries of

United States Fidelity Guaranty v. Weiri

Appellate Division of the Supreme Court of New York, Second Department
Oct 4, 1999
265 A.D.2d 321 (N.Y. App. Div. 1999)
Case details for

United States Fidelity Guaranty v. Weiri

Case Details

Full title:UNITED STATES FIDELITY GUARANTY CO., appellant v. FRANKLIN WEIRI, et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 4, 1999

Citations

265 A.D.2d 321 (N.Y. App. Div. 1999)
696 N.Y.S.2d 200

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