        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1305
CA 16-00751
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


MICHAEL J. STACHOWSKI, AS GUARDIAN OF THE
PROPERTY OF TAQUILO CASTELLANOS, AN INFANT,
ROGELIO CASTELLANOS, JR., INDIVIDUALLY, AND
AS PARENT AND NATURAL GUARDIAN OF TAQUILO
CASTELLANOS, AN INFANT, AND TAQUILO CASTELLANOS,
AN INFANT, PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

UNITED FRONTIER MUTUAL INSURANCE CO.,
DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ADAM R. DURST OF COUNSEL),
FOR DEFENDANT-APPELLANT.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (ARTHUR A. HERDZIK OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS MICHAEL J. STACHOWSKI, AS
GUARDIAN OF THE PROPERTY OF TAQUILO CASTELLANOS, AN INFANT, AND
TAQUILO CASTELLANOS, AN INFANT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Diane Y. Devlin, J.), entered February 1, 2016. The
judgment, among other things, denied the motion of defendant for
summary judgment and granted the cross motion of plaintiffs Michael J.
Stachowski, as guardian of the property of Taquilo Castellanos, and
Taquilo Castellanos, for summary judgment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying the cross motion of
plaintiffs Michael J. Stachowski, as guardian of the property of
Taquilo Castellanos, and Taquilo Castellanos and vacating the
declaration, and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking, inter
alia, a declaration that defendant is obligated to defend and
indemnify them in the underlying personal injury action arising out of
a dog bite. Defendant disclaimed liability under the homeowner’s
policy issued to plaintiff Taquilo Castellanos (Taquilo) based upon
the exclusion for canine-related injuries “caused by any dog . . .
owned, harbored, or in your care . . . when such injury or damage is
caused by . . . [a]ny dog that has not had inoculations as required by
law.” Defendant appeals from a judgment that, inter alia, denied its
motion for summary judgment and granted the cross motion of Taquilo
and plaintiff Michael J. Stachowski, as guardian of the property of
                                 -2-                          1305
                                                         CA 16-00751

Taquilo (Stachowski) for summary judgment declaring that defendant is
obligated to defend and indemnify Taquilo and Stachowski in the
underlying action.

     Pursuant to Insurance Law § 3420 (d) (2), defendant was required
to provide written notice of its disclaimer “as soon as [was]
reasonably possible.” Defendant had the burden of establishing the
reasonableness of its approximately 12-week delay in providing the
notice of disclaimer (see Nuzzo v Griffin Tech., 222 AD2d 184, 189, lv
dismissed 89 NY2d 981, lv denied 91 NY2d 802) and, here, it sought to
justify the delay based upon its need for an investigation into issues
bearing on its coverage decision (see First Fin. Ins. Co. v Jetco
Contr. Corp., 1 NY3d 64, 69).

     “Normally the question whether a notice of disclaimer of
liability or denial of coverage has been sent ‘as soon as is
reasonably possible’ is a question of fact which depends on all the
facts and circumstances, especially the length of and the reason for
the delay . . . It is only in the exceptional case that it may be
decided as a matter of law” (Hartford Ins. Co. v County of Nassau, 46
NY2d 1028, 1030, rearg denied 47 NY2d 951). This is not such an
exceptional case. We thus conclude that, while Supreme Court properly
denied defendant’s motion, it erred in granting the cross motion of
Taquilo and Stachowski. Issues of fact remain whether the “delay in
disclaiming was reasonably related to [defendant’s] performance of a
prompt, diligent, thorough, and necessary investigation” into whether
the dog had the inoculations required by law, i.e., a rabies
vaccination (Matter of Country-Wide Ins. Co. v Ramirez, 104 AD3d 850,
851; see Admiral Ins. Co. v State Farm Fire & Cas. Co., 86 AD3d 486,
490). We therefore modify the judgment accordingly.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
