AGWAY INSURANCE v. Jane Hayward, et al., appellants. (1999)

In an action, inter alia, for a judgment declaring the parties' rights pursuant to a policy of insurance, the defendants Jane Hayward and Lance Hayward appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated March 3, 1998, as denied their cross motion to dismiss the complaint based upon documentary evidence.

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

In October 1992 the appellants' car was involved in an accident with a car owned and operated by the defendant Jose Alvarez.   Alvarez, who was insured by Agway Insurance Co. (hereinafter Agway), commenced an action against the appellants, but did not tender the prosecution of the action to Agway.   The appellants answered the complaint and counterclaimed against Alvarez.   Thereafter, discovery was completed and the case was set for trial in August 1997;  however, it was removed from the trial calendar because the counterclaim had never been answered.   In October 1997 Alvarez's counsel forwarded the pleadings in the underlying action to Agway and requested that Agway provide a defense on the counterclaim.   In a letter addressed only to Alvarez as its insured, Agway promptly disclaimed coverage of the counterclaim, citing Alvarez's failure to timely notify it of the accident as required by the insurance policy provisions.

Agway commenced the instant action seeking, among other relief, a declaration that it had properly disclaimed coverage with regard to the counterclaim, and moved to stay the underlying action pending the determination of this action.   The Supreme Court granted Agway's motion and denied the appellants' cross motion to dismiss this action based upon the documentary evidence that Agway had notified only its insured, without notifying them also, of its intention to deny coverage on the counterclaim.

 We agree with the Supreme Court that the appellants' failure to give timely notice to Agway of the counterclaim vitiated Agway's responsibility to give timely notice to the appellants of its disclaimer (see, Insurance Law § 3420[d];  cf., Matter of DeLeon v. Motor Vehicle Acc. Indem. Corp., 243 A.D.2d 475, 662 N.Y.S.2d 820;  Eveready Ins. Co. v. Chavis, 150 A.D.2d 332, 540 N.Y.S.2d 860).   The obligation of the injured party to protect his interests by seeing that proper notification is given to the wrongdoer's carrier is independent of the contractual duties of the insured, and need not have been addressed in a notice of disclaimer where notice was provided to the insurer by the insured (see, Insurance Law § 3420 [a][3];  Massachusetts Bay Ins. Co. v. Flood, 128 A.D.2d 683, 684, 513 N.Y.S.2d 182).   In the present action, since the appellants never gave any notice to Agway of the existence of the counterclaim, they may not rely upon the insured's notice to Agway of the counterclaim in support of an argument that Agway should be estopped from disclaiming coverage on the counterclaim due to Agway's failure to directly notify the appellants of the disclaimer.

As the documentary evidence failed to dispose of all of the issues in Agway's declaratory judgment action (see, Weiss v. Cuddy & Feder, 200 A.D.2d 665, 606 N.Y.S.2d 766), the Supreme Court properly denied the appellants' motion to dismiss the action (see, CPLR 3211[a][1] ).

MEMORANDUM BY THE COURT.