Opinion
June 12, 1989
Appeal from the Supreme Court, Nassau County (Morrison, J.).
Ordered that the cross appeal is dismissed as abandoned; and it is further,
Ordered that the order is affirmed insofar as appealed from by the plaintiff; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff was seriously injured when he was struck by a motor vehicle driven by one Brian McClane. A judgment was entered against that tort-feasor and the plaintiff commenced the instant action in order to recover the balance of the judgment from McClane's excess insurance carrier, the defendant Allstate Insurance Company. The defendant denied liability, contending, inter alia, that McClane was engaged in a business activity at the time of the incident and that accidents occurring under such circumstances are excluded from coverage under the policy.
The plaintiff moved for summary judgment, relying primarily upon Brian McClane's affidavit categorically denying that he was involved in a business activity at the time of the accident. If there was any business involvement, the defendant is not liable to the plaintiff based on the business exclusion in the policy.
It is evident that McClane has a great personal interest in the matter. Thus, we find him to be an interested witness, whose testimony a fact finder may be inclined to discredit. If his testimony were not found credible, there would be no support for the plaintiff's position (see, Cohen v. St. Regis Paper Co., 64 N.Y.2d 656, 658). Furthermore, only McClane has personal knowledge of his purpose and destination at the time his vehicle struck the plaintiff. Where a matter is within a person's exclusive knowledge, on a motion for summary judgment an issue of credibility may be raised requiring a trial (see, Castillo v General Acc. Ins. Co., 111 A.D.2d 112, 113). Moreover, "summary judgment should be denied where knowledge of the facts `is * * * peculiarly within the possession of the movant'" (Frame v Markowitz, 125 A.D.2d 442, 443; see also, Hoffman-Rattet v. Ortho Pharm. Corp., 135 Misc.2d 750). Thus, we concur with the finding of the Supreme Court, Nassau County, that there are triable issues of material fact requiring the denial of summary judgment.
The plaintiff also contends that the defendant's notice disclaiming coverage pursuant to the business exclusion in the policy was untimely as a matter of law. Given the particular facts and circumstances of the instant action, this court notes its disapproval of the dilatory manner in which the defendant handled the plaintiff's claim. Nevertheless, the defendant's delay in giving timely notice of disclaimer was not unreasonable as a matter of law (see, Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, rearg denied 47 N.Y.2d 951). The determination of that issue is for the trier of fact (see, Allstate Ins. Co. v Gross, 27 N.Y.2d 263).
We have reviewed the parties' remaining contentions and find them to be without merit. Thompson, J.P., Lawrence, Rubin and Balletta, JJ., concur.