Opinion
2003-01873.
Decided April 26, 2004.
In an action pursuant to Insurance Law § 3420 to recover from the defendant Blue Ridge Insurance Company the amount of a judgment obtained against its insured, Blue Ridge Insurance Company appeals from so much of an order of the Supreme Court, Kings County (Bernstein, J.), entered January 6, 2003, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.
Vassalle, Kolmes Associates, New York, N.Y. (Andrew Giuseppe Vassalle of counsel), for appellant.
Kaston Aberle Levine, Mineola, N.Y. (Richard Aberle of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, DANIEL F. LUCIANO, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court correctly concluded that the defendant insurer, Blue Ridge Insurance Company (hereinafter Blue Ridge), was not entitled to summary judgment based on its defense of lack of cooperation of its insured, the defendant Anne Horan. Blue Ridge failed to meet its "heavy burden" of proving that it acted diligently to bring about the insured's cooperation, employing efforts that were reasonably calculated to obtain said cooperation, and that the attitude of the insured was one of "willful and avowed obstruction" ( Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 168; see Metlife Auto Home v. Burgos, 4 A.D.3d 477). Furthermore, the delay in notifying Blue Ridge was caused by the injured plaintiff's ineffective attempts to notify the insured, and the insured acted promptly to notify her insurance broker once she learned of the accident.
ALTMAN, J.P., FLORIO, LUCIANO and MASTRO, JJ., concur.