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Halloway v. State Farm Insurance Companies11/28/2005
ers in the vehicle. However, neither Fox's affidavit nor any other evidence produced by State Farm offered any explanation as to why it took five months for State Farm to determine that, at the time of the accident, the van was being used as a livery vehicle, or as to what State Farm learned in the course of its investigation that led it to reach that conclusion. In my view, State Farm's failure to offer an adequate explanation for its five-month delay in issuing a disclaimer after having a reasonable basis to conclude that a policy exclusion applied renders the disclaimer untimely as a matter of law (see Brighton Cent. School Dist. v American Cas. Co. of Reading, Pa., 19 AD3d 528). Accordingly, I vote to affirm the order granting summary judgment to the plaintiffs and to remit the matter to the Supreme Court, Queens County, for the entry of a judgment declaring that State Farm is obligated to defend and indemnify Osborne in the underlying personal injury action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
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