COLUMBIA CASUALTY COMPANY v. NATIONAL EMERGENCY SERVICES INC

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Supreme Court, Appellate Division, First Department, New York.

COLUMBIA CASUALTY COMPANY, Plaintiff-Appellant, v. NATIONAL EMERGENCY SERVICES, INC., et al., Defendants-Respondents.

Decided: April 24, 2001

SULLIVAN, P.J., ROSENBERGER, MAZZARELLI, WALLACH and BUCKLEY, JJ. Robert M. Kaplan, for Plaintiff-Appellant. Deirdre F. Curtis, for Defendants-Respondents.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about September 29, 2000, which, to the extent appealed from, granted defendants' motion for summary judgment declaring that defendants are entitled to insurance coverage under the policy at issue, and denied plaintiff's cross motion for summary judgment, unanimously affirmed, with costs.

 Insurance Law § 3420(d) requires an insurer to give the insured timely notice of disclaimer as soon as reasonably possible and applies to a “liability policy delivered or issued for delivery in this state” (emphasis added).   We reject plaintiff's claim that the timely disclaimer provision is inapplicable in this case merely because the policy in question was issued out of State and listed the address of the insured's corporate headquarters out of State.   The policy expressly covers insureds and risks located in New York and must therefore be deemed issued for delivery in New York (see, Am. Ref-Fuel Co. of Hempstead v. Employers Ins. Co. of Wausau, 265 A.D.2d 49, 53, 705 N.Y.S.2d 67).

 It is settled that failure by the insurer to give written notice of disclaimer based on an exclusion or failure to comply with a policy condition as soon as is reasonably possible renders the disclaimer ineffective (Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 416 N.Y.S.2d 539, 389 N.E.2d 1061).   Here, plaintiff's 17-month delay in disclaiming coverage was clearly unreasonable and therefore the disclaimer was ineffective regardless of whether defendants gave timely notice of the claim (see, Wasserheit v. New York Cent. Mut. Fire Ins. Co., 271 A.D.2d 439, 705 N.Y.S.2d 638;  Matter of State Farm Ins. Co. v. Brosnan, 220 A.D.2d 599, 632 N.Y.S.2d 628).   Plaintiff's additional grounds for disclaiming coverage are based on exclusionary clauses without which there would be coverage and therefore compliance with Insurance Law § 3420(d) is required (see, Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 188-189, 712 N.Y.S.2d 433, 734 N.E.2d 745;  Handelsman v. Sea Ins. Co. Ltd., 85 N.Y.2d 96, 99, 623 N.Y.S.2d 750, 647 N.E.2d 1258).