Warnock v. Blue Ridge Insurance

In an action pursuant to Insurance Law § 3420 to recover from the defendant Blue Ridge Insurance Company the amount of a judgment obtained against its insured, Blue Ridge Insuranee Company appeals from so much of an order of the Supreme Court, Kings County (Bernstein, J.), entered January 6, 2003, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly concluded that the defendant insurer, Blue Ridge Insurance Company, was not entitled to summary judgment based on its defense of lack of cooperation of its insured, the defendant Anne Horan. Blue Ridge failed to meet its “heavy burden” of proving that it acted diligently to bring about the insured’s cooperation, employing efforts that were reasonably calculated to obtain said cooperation, and that the attitude of the insured was one of “willful and avowed obstruction” (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168 [1967] [internal quotation marks omitted]; see Metlife Auto & Home v Burgos, 4 AD3d 477 [2004]). Furthermore, the delay in notifying Blue Ridge was caused by the injured plaintiffs ineffective attempts to notify the insured, and the insured acted promptly to notify her insurance broker once she learned of the accident. Altman, J.P., Florio, Luciano and Mastro, JJ., concur.