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Bovis Lend Lease LMB12/15/2005
ce on its face of any ground on which to disclaim, because it located the incident at "Columbia University Housing and Faculty Residence," with no indication that the project involved new residential property. However, on March 20, 2003, Royal received the Bovis-Millennium contract, which does indicate the nature of the project. Thus, while Royal learned of the grounds for a disclaimer as early as March 20, 2003, it did not give written notice of disclaimer until almost 60 days later, on May 14, 2003, the date on which it alleges the undated letter was issued, although it was not received by plaintiffs until May 21, 2003. Moreover, Royal received its own investigator's report, which included the information that the project was new construction and included residential apartments, on April 8, 2003. Thus, even measuring from the latest date on which Royal learned of the grounds for a disclaimer, i.e., April 8, 2003, Royal's notice of disclaimer was not issued until 36 days later.
Royal's explanation for the delay is that on March 10, 2003, Mr. Corhan had advised Royal that he was resigning effective March 21 and would be taking the week of March 17 as vacation. Royal alleges that although it took immediate steps to replace Mr. Corhan, his eventual replacement, Therese Huber, was unable to start work until April 28. Royal points out, however, that Ms. Huber completed her investigation, requested and received advice from coverage counsel, and issued the disclaimer letter in only 17 days.
Royal argues that the situation caused by Mr. Corhan's unexpected resignation was beyond its control, and that therefore the delay in issuing the notice of disclaimer was reasonable. In support of this argument, Royal cites New York Univ. v First Fin. Ins. Co. (322 F3d 750, 755 [2d Cir 2003]), in which the Federal court found that New York State courts have held notification delays to be reasonable "when an external factor beyond the insurer's control unexpectedly interferes with the insurer's ability to investigate the claim in a timely fashion." Two examples from this Court were cited. In Stabules v Aetna Life & Cas. Co. (226 AD2d 138 ), we held that the failure of the insurer's computer tracking system to discover the insured's notice of claim excused the insurer's delay in notification, and in Norfolk & Dedham Mut. Fire Ins. Co. v Petrizzi (121 AD2d 276 , lv denied 68 NY2d 611 ), we held that the insurer's delay while it waited to interview the insured, who had just given birth, was reasonable.
It is readily apparent that Royal's staffing problem was not an external factor beyond its control like a computer system failure or the need to wait for a more convenient time to interview a woman who has just delivered a baby. Indeed, the motion court found that Royal's need to replace its Claims Specialist while it was investigating the Winter claim was "irrelevant" and observed that " laintiffs should not have to wait until their insurer sorts out its employment affairs before receiving timely notice of a disclaimer."
We find, therefore, that the court properly held that the notice of disclaimer was untimely as a matter of law (see e.g. West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [1st Dept 2002], lv denied 98 NY2d 605 [30 days unreasonable as a matter of law where sole ground on which coverage was disclaimed was insured's delay in notifying insurer of occurrence]; Matter of Colonial Penn Ins. Co. v Pevzner, 266 AD2d 391 [2d Dept 1999] [same for 41-day delay]; Campos v Sarro, 309 AD2d 888 [2d Dept 2003] [39-day delay unreasonable after receipt of sufficient facts to disclaim on basis of homeowner's policy exclusions for injuries sustained in connection wi
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