dard, used to determine the reasonableness of the injured party's notice, is more lenient than the standard for the insured party's notice.See also Malik v. Charter Oak Fire Insurance Co., 60 A.D.3d 1013, 1016, 877 N.Y.S.2d 114 (2009) (where it was unclear whether insured or injured party notified insurer of accidental shooting first, order of notice did not affect court's analysis); Becker, 24 A.D.3d at 704, 806 N.Y.S.2d 720 (where insured notified insurer two years after slip-and-fall, and injured party notified two days later, insured's failure to provide notice "does not serve to cut off the right of an injured claimant to make a claim as against the insurer"); Wraight v. Exch. Ins. Co., 234 A.D.2d 916, 917, 651 N.Y.S.2d 803 (1996) (where insured notified its insurer twenty months after an automobile accident, and injured party gave notice the following month, "[a]n injured party has an independent right to provide written notice to an insurer" (internal quotation marks omitted)); Walters v. Atkins, 179 A.D.2d 1067, 1068, 579 N.Y.S.2d 525 (1992) (where insured notified its insurer eleven months after an all-terrain vehicle crash, and injured party notified insurer over a month later, "injured party has an independent right to provide written notice to an insurer and cannot be bound by an insured's late notice").See also Becker, 24 A.D.3d at 704, 806 N.Y.S.2d 720 ("When the injured party has pursued his rights with as much diligence as was reasonably possible the statute shifts the risk of the insured's delay to the compensated risk-taker.

He claims to have done so by virtue of a recorded phone message that his counsel left for Mt. Hawley's claims examiner, Michael Stockbridge, and a subsequent phone conversion between counsel and Stockbridge. While there is no question Mt. Hawley was aware of the occurrence and Diaz's claim by the time Diaz's counsel spoke to Stockbridge, the court cannot ignore the plain language of the New York Insurance law. It is well-settled that the notice called for in §3420(a) must be written, whether by the insured or by the injured party." Maryland Cas. Co. v. Efficient Solutions, Inc., 2013 U.S. Dist. LEXIS 33494 * 21 (W.D.N.Y. Feb. 14, 2013)(injured party's telephone call to insurer after learning the identity of the insurer from a declination letter failed to satisfy notice provision)(emphasis added); compare with Walters v. Atkins, 179 A.D.2d 1067 (4th Dep't 1992)(injured party's written request to insurer to provide coverage two months after learning its identity satisfactory notice). Thus, even though "the notice required of an injured party is measured with less rigidly than that required of the injured," Wright v. Exchange Ins. Co., 234 A.D.2d 916 (4th Dep't 1996)(copies of police report and correspondence between injured party and insured sufficient to satisfy written notice requirement), neither the phone message nor the phone call to Stockbridge satisfied Diaz's the written notice requirement.

To assert this right, an injured party must act reasonably in providing notice. Walters v. Atkins, 179 A.D.2d 1067, 1068, 579 N.Y.S.2d 525, 527 (4th Dep't 1992) (stating that an injured party is held to a less rigid standard than the insured party would be when providing notice). A court is afforded significant discretion in determining the reasonableness of notice.

To assert this right, an injured party must act reasonably in providing notice. Walters v. Atkins, 179 A.D.2d 1067, 1068, 579 N.Y.S.2d 525, 527 (4th Dep't 1992) (stating that an injured party is held to a less rigid standard than the insured party would be when providing notice). A court is afforded significant discretion in determining the reasonableness of notice.

The Court finds that there is an issue of material fact regarding the Palmas' diligence in attempting to ascertain the identity of the insurer and notifying U.S. Underwriters of their claim. See Steinberg v. Hermitage Ins. Co., 26 A.D.3d 426, 428 (N.Y.App.Div. 2006); Allstate Ins. Co. v. Marcone, 29 A.D.3d 715, 717 (N.Y.App.Div. 2006); Appel v. Allstate Ins. Co., 20 A.D.3d 367, 368 (1st Dep't 2005); Denneny v. Lizzie's Buggies, Inc., 306 A.D.2d 89, 89 (N.Y.App.Div. 2003); Walters v. Atkins, 179 A.D.2d 1067, 1068 (N.Y.App.Div. 1992); Lauritano v. American Fid. Fire Ins. Co., 3 A.D.2d 564, 568 (N.Y.App.Div. 1957). Accordingly, the parties are required to inform the Court whether they consent to a trial of this issue before Magistrate Judge Roanne L. Mann on the limited issue of the Palmas' diligence no later than July 31, 2008.

Some courts have held to the contrary. See, e.g., Walters v. Atkins, 579 N.Y.S.2d 525, 527 (App.Div. 4th Dep't 1992) (stating that first notice by the insured does not extinguish the injured party's ability to cure the insured's untimeliness because the "injured party has an independent right to provide written notice to an insurer and cannot be bound by an insured's late notice"). Relying on Lauritano v. American Fidelity Fire Ins. Co., 162 N.Y.S.2d 553 (App.Div. 1st Dep't 1957), Winchester argues that the Claimants' notice need not be the first notice that U.S. Liability received provided that the notice was timely under the circumstances.

Supreme Court properly granted the motions of Gath and Misner for summary judgment, denied plaintiff's cross motion for summary judgment and declared that plaintiff has a duty to defend and indemnify Gath in the underlying personal injury action. Where an insurer disclaims coverage, "the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated" (General Acc. Ins. Group v. Cirucci, 46 N.Y.2d 862, 864; see, Wraight v. Exchange Ins. Co. [appeal No. 2], 234 A.D.2d 916, 917-918, lv denied 89 N.Y.2d 813). Misner, the injured party, had an independent right to provide written notice to plaintiff and is not bound by Gath's allegedly late notice (see, General Acc. Ins. Group v. Cirucci, supra, at 863-864; Wraight v. Exchange Ins. Co., supra, at 917; Walters v. Atkins, 179 A.D.2d 1067, 1068). Although Misner provided such written notice, the notice of disclaimer addressed to Gath, a copy of which was sent to Misner's attorney, disclaimed coverage based only on Gath's failure to provide timely notice.

We affirm, but for a different reason. "An injured party has an independent right to provide written notice to an insurer and cannot be bound by an insured's late notice" ( Walters v Atkins, 179 AD2d 1067, 1068). Provided that an "injured party has pursued his rights with as much diligence `as was reasonably possible' the statute shifts the risk of the insured's delay to the compensated risk-taker" ( Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 568, affd 4 NY2d 1028).

Whether these facts preclude plaintiff from maintaining this action must be determined in accordance with Insurance Law § 3420 (a) (4). This statute provides that, even though the time to provide notice has elapsed, notice to an insurer from an injured third party is valid if it is shown that it had not been reasonably possible to give notice within the prescribed time and that it was given as soon as was reasonably possible. What constitutes a reasonable time is liberally construed, and is ordinarily a question for the factfinder if an excuse is offered for the delay (see, Walters v Atkins, 179 A.D.2d 1067; James v Allstate Ins. Co., 177 A.D.2d 998). The excuse offered by plaintiff is that, although NRMHA informed it in December 1987 that defendant was its insurer, it did not provide notice to defendant because NRMHA's counsel mistakenly advised it that defendant had disclaimed coverage.

In determining the reasonableness of a third party's notice, it has been held, "The notice required * * * is measured less rigidly than that required of the insured." (Walters v. Atkins, 179 A.D.2d 1067, 1068.) With respect to the Davises' argument that they exercised due diligence to ascertain the insurer's identity and that the insureds never disclosed the identity of their insurer, this Court held, in similar circumstances, that a thirteen-month delay was not unreasonable. (Lauritano v. American Fid. Fire Ins. Co., 3 A.D.2d 564, affd 4 N.Y.2d 1028.)