In re the Arbitration between Long Island Insurance & Alini

In a proceeding to stay arbitration, the parties cross-appeal from an order of the Supreme Court, Kings County, dated September 26, 1977, [1039] which, inter alia, upon reargument, vacated a prior order of the same court, dated June 17, 1977, and directed a hearing on certain specified issues. Order modified, on the law, by adding thereto a provision that Special Term also consider, upon the hearing, whether the petitioner unduly delayed disclaimer of liability or denial of coverage. As so modified, order affirmed, without costs or disbursements. A hearing is required to determine the factual issue whether the filing of the notice of claim was timely (see Matter of Motor Vehicle Acc. Ind. Corp. [Brown], 15 AD2d 578, app dsmd 11 NY2d 968; cf. Matter of Motor Vehicle Acc. Ind. Corp. [Cosulich] 23 AD2d 546). In the event it is determined that the notice of claim was not filed within a reasonable time, consideration should be given to the issue whether, under the circumstances, the petitioner promptly disclaimed liability or denied coverage, as required by subdivision 8 of section 167 of the Insurance Law (see Allstate Ins. Co. v Gross, 27 NY2d 263; Matter of Allstate Ins. Co. [Frank] 57 AD2d 950). Latham, J. P., Gulotta, Hargett and Hawkins, JJ., concur.