Opinion
October 14, 1997
Appeal from the Supreme Court, Kings County (Clemente, J.).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the order and judgment is affirmed; and it is further,
Ordered that the respondent Chacko Matthew is awarded one bill of costs.
To effectively deny insurance coverage based upon lack of cooperation, an insurance carrier must demonstrate (1) that it acted diligently in seeking to bring about the insured's cooperation, (2) that the efforts employed by the carrier were reasonably calculated to obtain the insured's cooperation, and (3) that the attitude of the insured, after his cooperation was sought, was one of willful and avowed obstruction ( see, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159; Commercial Union Ins. Co. v. Burr, 226 A.D.2d 416; Pawtucket Mut. Ins. Co. v. Soler, 184 A.D.2d 498). Here, the Supreme Court properly determined that the carrier failed to sustain its heavy burden of proving that it is not obligated to defend or indemnify its insured.
The plaintiff's remaining contention is unpreserved for appellate review and, in any event, without merit.
Miller, J.P., O'Brien, Santucci and Altman, JJ., concur.