REID v. CITIZENS INSURANCE COMPANY OF AMERICA

Ordered that the order and judgment is modified, on the law, by deleting the provisions thereof which (1) granted the plaintiffs' motion for summary judgment, (2) declared that the defendants are obligated to defend and indemnify the plaintiffs with respect to an action entitled Gorniok v. Reid, pending in the Supreme Court, Suffolk County, (3) directed the defendants to pay any and all attorneys fees, already paid or which are due and owing, incurred by the plaintiffs in the defense of the action entitled Gorniok v. Reid, pending in the Supreme Court, Suffolk County, and (4) awarded the plaintiffs costs on their motion for summary judgment, and substituting therefor a provision denying the plaintiffs' motion in its entirety; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Triable issues of fact exist as to whether the plaintiffs' delay in notifying the defendants of the occurrence for which they now seek defense and indemnification was based on a good faith belief that a claim would not be made against them and whether such belief was reasonable ( see, Kim v. Maher, 226 A.D.2d 350). Therefore, the court erred in granting the plaintiffs' motion for summary judgment. Moreover, we note that Supreme Court improperly considered whether the defendants were prejudiced by the plaintiffs' delay in providing notice of the underlying occurrence ( see, Unigard Sec. Ins. Co. v. North Riv. Ins. Co., 79 N.Y.2d 576, 578; Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440).

The court also erred in awarding the plaintiffs costs on their motion for summary judgment ( see, Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21).

The defendants' remaining contention is without merit. Bracken, J.P., Miller, Joy, Hart and Krausman, JJ., concur.