IN RE: Patrick COSGRIFF

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

IN RE: Patrick COSGRIFF, Petitioner-Respondent, v. PROGRESSIVE INSURANCE COMPANY, Respondent-Respondent, Allstate Insurance Company, Appellant.

Decided: March 24, 2003

NANCY E. SMITH, J.P., LEO F. McGINITY, BARRY A. COZIER and WILLIAM F. MASTRO, JJ. Feeney, Gayoso & Fitzpatrick, LLP, Hauppauge, N.Y. (Elizabeth A. Fitzpatrick of counsel), for appellant. Bosco, Bisignano & Mascolo, LLP, Staten Island, N.Y. (John Bosco and James Maleady of counsel), for petitioner-respondent. Lynch & Lynch, LLP, Paramus, N.J. (Victor Timoshenko of counsel), for respondent-respondent.

In a proceeding pursuant to CPLR article 75 to compel arbitration of an uninsured motorist claim, Allstate Insurance Company appeals from a judgment of the Supreme Court, Richmond County (Ponterio, J.), entered April 6, 2002, which, inter alia, stayed the arbitration and determined that its disclaimer of coverage was invalid and of no force and effect.

ORDERED that the judgment is affirmed, with costs.

 Insurance Law § 3420(d) provides that insurers shall “give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant.”   The insurer has the burden to explain any delay in providing notice of a disclaimer or denial of coverage, and the reasonableness of such delay is a question of fact which is determined upon the facts and circumstances of each case (see Mount Vernon Hous. Auth. v. Public Serv. Mut. Ins. Co., 267 A.D.2d 285, 286, 699 N.Y.S.2d 905;  Prudential Property & Cas. Ins. v. Persaud, 256 A.D.2d 502, 682 N.Y.S.2d 412).

 The petitioner notified Allstate Insurance Company (hereinafter Allstate) of the January 26, 1999, accident by letter dated February 16, 1999.   Allstate responded by letter dated May 7, 1999, advising the petitioner's counsel that it was “confident” that the subject claim could be resolved in the near future.   Thereafter, by letter dated June 15, 2000, Allstate issued a disclaimer of coverage.   However, Allstate failed to provide any explanation for its 17 month delay in issuing a disclaimer.   As such, the delay by Allstate was unreasonable as a matter of law (see Mount Vernon Hous. Auth. v. Public Serv. Mut. Ins. Co., supra;  Prudential Property & Cas. Inc. v. Persaud, supra).   Accordingly, the Supreme Court correctly determined that the disclaimer was invalid and of no effect.

Allstate's remaining arguments are either dehors the record (see R & J Yorek, Inc. v. MCL Constr., 173 A.D.2d 531, 532, 570 N.Y.S.2d 131;  Carhuff v. Barnett's Bake Shop., 54 A.D.2d 969, 388 N.Y.S.2d 677) or unpreserved for appellate review (see Rosendale v. Galin, 266 A.D.2d 444, 445, 698 N.Y.S.2d 884;  Gross v. Aetna Cas. & Sur. Co., 240 A.D.2d 468, 658 N.Y.S.2d 137).

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