Opinion
June 6, 1994
Appeal from the Supreme Court, Queens County (Lonschein, J.).
Ordered that the order and judgment is modified, on the law, (1) by deleting so much of the first decretal paragraph thereof as granted the defendant's motion for summary judgment, and substituting therefor a provision denying the defendant's motion for summary judgment, and (2) by deleting the second decretal paragraph thereof; as so modified, the order and judgment is affirmed, without costs or disbursements.
The plaintiffs argue that the defendant's disclaimer was not issued as soon as "reasonably possible" (Insurance Law § 3420 [d]). The defendant does not dispute the applicability of Insurance Law § 3420 (d) (cf., Ward v. Security Mut. Ins. Co., 192 A.D.2d 1000; Pawelek v. Security Mut. Ins. Co., 143 A.D.2d 514; Spinosa v. Hartford Fire Ins. Co., 90 A.D.2d 574), but argues instead that any delay in issuing its disclaimer was reasonable as a matter of law.
Under the circumstances of this case, we find that whether the disclaimer was issued within a reasonable time constitutes an issue of fact for trial (see, Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028; Allstate Ins. Co. v. Gross, 27 N.Y.2d 263; Massachusetts Bay Ins. Co. v. Pendleton, 159 A.D.2d 770; Commercial Union Ins. Cos. v. Jedamich Enters., 146 A.D.2d 599; cf., Matter of Nationwide Mut. Ins. Co. v. Steiner, 199 A.D.2d 507). The order and judgment appealed from should therefore be modified so as to deny both parties' motions for summary judgment. We pass on no other issue. Bracken, J.P., Sullivan, O'Brien and Joy, JJ., concur.