This motion arises out of an insurance-coverage action brought by an insurer, plaintiff Burlington Insurance Company. Burlington seeks a declaratory judgment that it need not defend or indemnify its insured, defendant Sublink Ltd., based upon a disclaimer in light of Sublink's noncooperation with Burlington. Sublink has not appeared or answered in this action, and Burlington now moves for a default judgment. To determine Burlington's entitlement to default judgment, though, this court must consider whether it timely and validly disclaimed coverage.

According to the allegations of Burlington's complaint, Burlington issued an insurance policy to Sublink, a construction contractor. In July 2014, nominal defendant Mauro Giraldo allegedly was injured in connection with a construction project on which Sublink was serving as a contractor. Mauro Giraldo and nominal defendant Sandra Giraldo brought a personal injury action in Supreme Court, Queens County, against Sublink and certain other parties (also nominal defendants here). Under the terms of the insurance policy, Burlington assumed Sublink's defense and retained counsel to represent Sublink in the personal-injury action.

Plaintiffs in that action sought to depose a witness from Sublink. That deposition repeatedly was adjourned. In January 2018, plaintiffs moved to strike Sublink's answer for failure to produce a representative for depositions. Sublink's principal, Joe Visconti, notified defense counsel that he would appear for a deposition. The deposition was scheduled for April 26, 2018; and the trial court adjourned plaintiffs' motion to strike until April 30.

Ultimately, the law firm representing Sublink was not able to reach Visconti to discuss his appearance at the scheduled April deposition—despite repeated attempts—until April 25, 2018, the day before the deposition date. And when counsel did reach Visconti, he told them that he would not be appearing. Following Visconti's nonappearance at the scheduled deposition, Supreme Court entered an order on May 1, 2018, striking Sublink's answer for its repeated failure to provide a witness to be deposed.

Burlington received notification two weeks later of the order striking Sublink's answer. Burlington then wrote Visconti a letter, laying out the circumstances under which Sublink's answer was stricken, and warning him that his actions (and their effect on Sublink's defense in the personal-injury action) violated the terms of Sublink's insurance policy. Burlington did not, however, disclaim coverage at that point. Rather, Burlington's letter warned Visconti that if he did not contact it promptly and confirm that he would appear for a deposition in the action should the trial-court order be vacated, Burlington would then be forced to disclaim coverage. Burlington's letter also stated that if the trial-court order stood, Burlington might be forced to disclaim coverage in any event.

On appeal, in August 2019 the Appellate Division, Second Department, affirmed the order of Supreme Court, Queens County, striking Sublink's answer for its willful and contumacious refusal to comply with court-ordered discovery. (See Giraldo v Highmark Indep., LLC, 175 AD3d 654 [2019].) One week later, on September 5, 2019, Burlington issued Sublink a letter (copied to the other parties in the underlying action) disclaiming coverage.

Also on September 5th, Burlington commenced the present action seeking a declaratory judgment that Burlington does not owe a duty to defend or indemnify Sublink in the underlying personal-injury action.^[FN1] Sublink has not appeared or answered in this action. Burlington now moves for a default judgment against Sublink. Burlington requests that upon that default judgment, this court grant the declaratory relief that Burlington seeks. Sublink has not opposed the motion; but the other parties to the underlying action, contending that they have a stake as to whether Burlington is still obliged to defend and indemnify Sublink, have opposed Burlington's motion.

To obtain a default judgment, a plaintiff must file proof of service of the pleadings upon the defendant, proof of the defendant's default, and proof of the facts constituting the plaintiff's claim, generally in the form of affidavits. (See CPLR 3215 [f].) A plaintiff who submits affidavits satisfying these requirements is not, however, automatically entitled to a default judgment. A defaulting defendant is deemed to have admitted all of the allegations in the complaint. (See Rokina Optical Co. v Camera King, Inc., 63 NY2d 728, 730 [1984].) The "legal conclusions to be drawn from such proof," though—and whether the facts deemed established demonstrate that the plaintiff has a viable cause of action—"are reserved for the Supreme Court's determination." (McGee v Dunn, 75 AD3d 624, 624 [2d Dept 2010] [internal quotation marks omitted].) If the allegations of the complaint do not establish a cause of action, the plaintiff's motion for default judgment must be denied. (See Matter of Dyno v Rose, 260 AD2d 694, 698 [3d Dept 1999].)

Here, there is little dispute that Burlington properly served Sublink with its pleadings, or that Sublink then defaulted. The question is instead whether the allegations of Burlington's complaint (considered along with the material in Burlington's supporting affidavits) demonstrate that Burlington has a cause of action.

Insurance Law § 3420 (d) (2) provides that in a personal-injury action (such as the underlying action in this case), an insurance company that disclaims liability or denies coverage under an insurance policy must "give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant." A timely disclaimer is an element of an insurer's claim for a declaratory judgment providing that the insurer is not required to defend or indemnify its insured. The insurer must [*2]therefore establish that it timely disclaimed in order to obtain a default judgment against its insured. (See Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 AD3d 649, 651 [2d Dept 2011].)

In this case, the nominal defendants (who include the injured parties and other claimants under Sublink's insurance policy) contend that Burlington's motion papers fail to establish that it timely and validly disclaimed as to Sublink. This court agrees.

Burlington's own complaint and supporting exhibits in this action reflect that the deposition of a corporate witness from Sublink was scheduled and adjourned repeatedly in the underlying action between 2015 and January 2018—and that the failure of the deposition to go forward led plaintiffs to move in January 2018 to strike Sublink's answer for failure to provide discovery.

Burlington's papers in support of its complaint here also reflect that Sublink's principal, Visconti, eventually agreed to appear for a deposition; that the deposition was scheduled in February 2018 to be held at the end of April 2018; and that Sublink's counsel provided Visconti with written notice of the scheduled deposition at the beginning of March 2018. Yet Sublink's law firm (and firm staff) were unable to reach Visconti by telephone to confirm his appearance and to arrange a meeting to prepare for the deposition—despite contacting him no fewer than 15 times in the days leading up to the deposition. The firm's calendar clerk ultimately succeeded in getting Visconti on the phone, one day before the deposition, only through resorting to a ruse: calling him from her personal cellphone, rather than a firm telephone line, to disguise her identity. Even then, Visconti refused to show up for the deposition. And his failure to appear led Supreme Court, Queens County, to issue an order on May 1, 2018, striking Sublink's answer for its failure to permit court-ordered discovery.

Further, Burlington's motion papers reflect that upon becoming aware of this order, Burlington wrote to Visconti in mid-May 2018 and notified him expressly that his failure to make himself available for a deposition violated Sublink's obligation under the terms of its insurance policy to cooperate in defending the underlying action, and that this noncooperation could form the basis of a disclaimer of liability under the policy. And Burlington's position on Sublink's noncooperation was consistent with prior appellate precedent on this issue. (See Country-Wide Ins. Co. v Preferred Trucking Servs. Corp., 22 NY3d 571, 574, 577 [2014]; Matter of New S. Ins. Company/GMAC Ins. (Krum), 39 AD3d 1110, 1111-1112 [2d Dept 2007]; Utica First Ins. Co. v Arken, Inc., 18 AD3d 644, 645 [2d Dept 2005].)

Thus, on this record Burlington was aware of a sufficient ground to disclaim in May 2018. Yet Burlington undisputedly did not disclaim coverage for Visconti's lack of cooperation until September 2019, after the Second Department affirmed Supreme Court's order striking Sublink's answer. This 16-month wait far exceeds any reasonable period of delay for purposes of Insurance Law § 3420 (d) (2)—even taking into account the need to carefully consider whether Sublink's lack of cooperation was sufficiently willful obdurate to warrant a disclaimer. (See Robinson v Global Liberty Ins. Co. of NY, 164 AD3d 1385, 1386, 1387 [2d Dept 2018] [holding that a four-month delay in disclaiming was unreasonable as a matter of law]. Cf. Continental Cas. Co. v Stradford, 11 NY3d 443, 450-451 [2008] [holding that the reasonableness of a two-[*3]month delay in disclaiming raised material disputes of fact].)

Burlington asserts, though, that Visconti told Burlington investigators in late May 2018 that he would indeed be willing to appear for a deposition if he were afforded sufficient notice of the deposition date. These statements by Visconti, Burlington contends, ameliorated Visconti's prior failure to cooperate—thereby assertedly depriving Burlington of grounds to disclaim until the Second Department's September 2019 decision established Sublink's noncooperation "as a matter of law." (NYSCEF No. 28, at 5-6.) This contention is without merit on the present record.

To begin with, Burlington has not shown why it would have been required to credit Visconti's newfound cooperation. After all, as of May 2018, Sublink had failed to produce a representative to be deposed in the underlying personal-injury action for nearly four years—even after Supreme Court clearly signaled that Sublink's continued failure to comply with its discovery obligations risked severe discovery sanctions. And Sublink's continued and persistent failure led Supreme Court to conclude that Sublink's (mis)conduct was sufficiently grievous to warrant precluding Sublink from offering any evidence at trial. In these circumstances, even if Visconti's change of heart appeared genuine, Burlington would have had a strong argument that Sublink was not entitled to one last chance to cooperate before losing coverage. (See Levy v Chubb Ins., 240 AD2d 336, 337-338 [1st Dept 1997]; Johnson v Allstate Ins. Co., 197 AD2d 672, 672 [2d Dept 1993]; Evans v International Ins. Co., 168 AD2d 374, 375-376 [1st Dept 1990]; Averbuch v Home Ins. Co., 114 AD2d 827, 829 [2d Dep 1985]; Williams v American Home Assur. Co., 97 AD2d 707, 708-709 [1st Dept 1983].)

Additionally, Burlington's papers on the present motion provide strong reasons why it was entitled to have doubted the credibility of Visconti's professed willingness to appear. The record reflects that Visconti had previously indicated in February 2018 that he would make himself available for a deposition; yet Visconti then systematically evaded contact with Sublink's counsel when they attempted to confirm his appearance at the scheduled April 2018 deposition—to such a degree that counsel were only able to reach him by calling from a personal cellphone, after trying to reach him 15 times from a firm telephone number. And this pattern of behavior also undermined Visconti's excuse to Burlington for his refusal to show up to the April 2018 deposition, namely that Sublink's attorneys had only given him one day's advance notice of the deposition. Burlington does not explain why it nonetheless concluded that it was required to give dispositive weight to Visconti's newfound willingness to be deposed.

Furthermore, on this record Burlington has not shown why the Second Department's affirmance of Supreme Court's preclusion order materially changed Burlington's (non)cooperation analysis. Burlington claims now that the Second Department's ruling made it "law of the case" that Sublink's failure to cooperate was willful and contumacious (NYSCEF No. 17, at 13), and established Sublink's noncooperation "as a matter of law" (NYSCEF No. 28, at 6). The Second Department's decision, though, dealt only with whether Supreme Court's May 1, 2018, preclusion order was proper—and thus necessarily was based on Sublink's conduct prior to May 1, 2018. Burlington's position, on the other hand, has been that regardless of what came before, Visconti's statements to Burlington after May 1 about appearing for a deposition ameliorated his prior lack of cooperation for disclaimer purposes. And the Second Department's [*4]ruling on appeal necessarily did not address that issue.

Burlington cannot have it both ways. Either what counts is Visconti and Sublink's stubborn refusal to cooperate prior to May 1, 2018 (in which case Burlington had sufficient grounds to disclaim at that point), or what counts is Visconti's professed change of heart after May 2018 (in which case the Second Department's affirmance of Supreme Court's order as to pre-May 1 conduct would not change the noncooperation analysis and would not, without more, support Burlington's disclaimer).

To be sure, the Second Department's ruling did lock in the prejudice to Sublink (and thus to Burlington) that had resulted from Sublink and Visconti's failure to cooperate with their counsel in defending the personal-injury action. But an insurer is not required to establish prejudice due to noncooperation before it may disclaim. (See Atlantic Mut. Ins. Co. v Struve, 210 AD2d 112, 114 [1st Dept 1994].) Noncooperation alone, if sufficiently willful and obdurate, will suffice.

In short, on the record before the court on this motion, Burlington either could have disclaimed as of May 2018 or shortly thereafter, or lacked a valid basis to disclaim in September 2019. In either case, Burlington has not established that it timely and validly disclaimed as to Sublink. Burlington therefore is not entitled to the default judgment that it seeks on this motion. (See RJNJ Services, 89 AD3d at 651.)

Accordingly, it is

ORDERED that Burlington's motion for default judgment is denied.