Alcantara v New York Cent. Mut. Fire Ins. Co.

[*1] Alcantara v New York Cent. Mut. Fire Ins. Co. 2004 NY Slip Op 50260(U) Decided on April 9, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED April 9, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2003-501 Q C

LUIS ALCANTARA, Respondent,

against

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered March 10, 2003, which granted plaintiff's motion for summary judgment.

Order unanimously affirmed without costs.

In August of 2002, plaintiff commenced this action against defendant insurer, pursuant to Insurance Law § 3420 (a) (2), after obtaining a default judgment against defendant's insureds, Sandra Castro and Raymond Castro, which judgment remained unsatisfied for more than 30 days. In the underlying action, it was alleged that on May 4, 1997, plaintiff and co-plaintiff Colon were passengers in a vehicle owned by
defendant Sandra Castro and operated by defendant Raymond Castro when they were
injured in an automobile accident. A default judgment was entered in favor of plaintiff and against the Castros on January 14, 2002. (A prior default judgment had been entered in the underlying action in favor of the co-plaintiff Colon on October 24, 2000 and a direct action against the insurer based on that default judgment was commenced by Colon in May of 2001). Defendant claims not to have known about the underlying action until May of 2001, when it received a summons and complaint in the co-plaintiff's direct action against it and claims to have sent a notice of disclaimer to its insureds and to the co-plaintiff in the underlying action prior to the time it was served with this plaintiff's default judgment in the underlying action. In [*2]opposition to plaintiff's motion for summary judgment, defendant invoked the disclaimer as effective against this plaintiff.

In order to disclaim coverage for personal injuries, an insurer must give written notice of such disclaimer, as soon as is reasonably possible, to the injured party or any other claimant, as well as to the insured (see Insurance Law § 3420 [d]). It does not appear, however, that defendant gave written notice of the disclaimer to the plaintiff
herein as soon as reasonably possible, in accordance with the statutory provisions. Accordingly, the disclaimer was not effective against this plaintiff (see Markevics v Liberty Mut. Ins. Co., 97 NY2d 646 [2001]; Eagle Ins. Co. v Ortega, 251 AD2d 282 [1998]).
Decision Date: April 09, 2004