Gill v. Gouchie , 621 N.Y.S.2d 679 ( 1994 )

—Judgment unanimously reversed on the law without costs, cross motion denied, motion granted and judgment granted in accordance with the following Memorandum: Supreme Court erred in granting the cross motion of third-party defendant, Zurich American Insurance Group (Zurich), for summary judgment declaring that it was not obligated to defend or indemnify plaintiff, Robert Gill, in a personal injury action brought against Gill by David A. Gouchie, defendant-third-party plaintiff. Zurich’s policy provided coverage for the use of any automobile by family members living at home. Consequently, coverage existed under the policy and Zurich was relying upon an exclusion, use of the automobile without permission, to deny coverage. Under those circumstances, Zurich had an obligation to disclaim timely (see, Planet Ins. Co. v Bright Bay Classic Vehicles, 75 NY2d 394, rearg denied 76 NY2d 773; Greater N. Y. Mut. Ins. Co. v Clark, 205 AD2d 433; cf., Zappone v Home Ins. Co., 55 NY2d 131, 138-139).

We conclude that Zurich’s disclaimer was untimely. Zurich was in possession of all of the facts necessary to invoke the exclusion in its policy for non-permissive use, at the latest, on April 14, 1993, when this Court held that Gill was not a permissive user of the Gouchie vehicle as a matter of law (see, Allstate Ins. Co. v Gill, 192 AD2d 1123). Zurich’s disclaimer in June 1993, over two months later, was untimely as a matter of law (see, Alice J. v Joseph B., 198 AD2d 846, 847; National Cas. Co. v Levittown Events, 191 AD2d 543, 544; Farmers Fire Ins. Co. v Brighton, 142 AD2d 547, 548). Thus, we grant the motion of third-party plaintiff, in which plaintiff joined, and grant judgment in favor of third-party plaintiff declaring that Zurich is obligated to defend Gill in the personal injury action brought against him by David A. Gouchie. (Appeals from Judgment of Supreme Court, Erie County, Wolfgang, J.—Declaratory Judgment.) Present—Balio, J. P., Lawton, Fallon, Wesley and Doerr, JJ.