You are here: / / INSURER DID NOT DEMONSTRATE THE INSUREDS’ LACK OF COOPERATION WITH...

INSURER DID NOT DEMONSTRATE THE INSUREDS’ LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff's motion for summary judgment against the defendant insurer should have been granted. Plaintiff was involved in an automobile accident with the insureds [Onwuzurulke and Noel]. The defendant insurer disclaimed coverage on the basis of the insureds' alleged lack of cooperation with the investigation. The Second Department held that insurer did not demonstrate the lack of cooperation on the part of one of the insureds and did not make a timely disclaimer:

“To effectively deny coverage based upon lack of cooperation, an insurance carrier must demonstrate (1) that it acted diligently in seeking to bring about the insured's cooperation, (2) that the efforts employed by the insurer were reasonably calculated to obtain the insured's cooperation, and (3) that the attitude of the insured, after his or her cooperation was sought, was one of willful and avowed obstruction” … . ” [M]ere efforts by the insurer and mere inaction on the part of the insured, without more, are insufficient to establish non-cooperation'” … .

The defendant met these requirements with regard to Onwuzurulke. The defendant hired an investigator to locate Onwuzurulke, the investigator communicated with him, and Onwuzurulke refused to cooperate. However, with regard to Noel, the defendant failed to meet its “heavy” burden of “proving lack of cooperation”… . defendant repeatedly sent letters to an address where Noel did not reside. Further, the defendant's investigator searched for Noel under an incorrect name.

In any event, the defendant's disclaimer of coverage with regard to both Noel and Onwuzurulke was untimely. Insurance Law § 3420(d)(2) provides that, when an insurer disclaims liability or denies coverage for bodily injury arising out of a motor vehicle accident occurring within the state, “it 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 timeliness of an insurer's disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage” … . “[T]he issue of whether a disclaimer was unreasonably delayed is generally a question of fact, requiring an assessment of all relevant circumstances”… . However, “an insurer's explanation [for the delay in disclaiming] is insufficient as a matter of law where the basis for denying coverage was or should have been readily apparent before the onset of delay”… . Robinson v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 06128, Second Dept 9-19-18

INSURANCE LAW (INSURER DID NOT DEMONSTRATE THE INSUREDS' LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NONCOOPERATION (INSURANCE LAW, (INSURER DID NOT DEMONSTRATE THE INSUREDS' LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DISCLAIMER (INSURANCE LAW, INSURER DID NOT DEMONSTRATE THE INSUREDS' LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, INSURER DID NOT DEMONSTRATE THE INSUREDS' LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

You might also like
COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS.
DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT).
PLAINTIFF BANK PRESENTED INSUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, THE BANK SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).
THE DEMAND FOR THE RETURN OF THE DEPOSIT UNDER A REAL ESTATE PURCHASE CONTRACT WAS AN ANTICIPATORY BREACH OF THE CONTRACT AND PLAINTIFF WAS ENTITLED TO KEEP THE DEPOSIT AS LIQUIDATED DAMAGES (SECOND DEPT). ​
THE COVID TOLL OF THE SPEEDY TRIAL STATUTE RENDERED THE INDICTMENT TIMELY (SECOND DEPT).
ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).
MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).
FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET... SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT...