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QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED.

The Court of Appeals, in a brief memorandum decision, determined there was a question of fact whether defendant insurance company waived the late-notice defense by not mentioning the defense in the disclaimer letters. The defense had been raised in earlier communications. Therefore defendants’ motion to add the defense in an amended answer was properly granted:

Analyzing the circumstances under the common-law waiver standard, which requires an examination of all factors, defendants cannot be said to have waived their right to assert the late-notice defense as a matter of law by failing to specifically identify late notice in their disclaimer letters. Defendants identified the late-notice defense in early communications with plaintiff before relying on a reservation of rights in two disclaimer letters. “[U]nder common-law principles, triable issues of fact exist whether defendants clearly manifested an intent to abandon their late-notice defense” (Keyspan Gas E. Corp. v Munich Reins. Am., Inc., 23 NY3d 583, 591 [2014]). Accordingly, Supreme Court properly granted defendants’ motion for leave to amend their answer to reassert the affirmative defense of late notice. Estee Lauder Inc. v OneBeacon Ins. Group, LLC, 2016 NY Slip Op 06012, CtApp 9-15-16

INSURANCE LAW (QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)/CIVIL PROCEDURE (INSURANCE LAW, WAIVER, QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)/WAIVER (QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)

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