The opinion of the court was delivered by: Ciparick, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Over the course of nearly six years, defendant Terrance Stradford cooperated only sporadically with his professional liability insurer, plaintiff Continental Casualty Company, in the defense of two dental malpractice actions. We are asked to determine whether plaintiff timely disclaimed coverage in those actions on the basis of Stradford's non-cooperation. Because issues of fact remain with respect to the timeliness of plaintiff's disclaimer, we modify the order of the Appellate Division by denying summary judgment to defendants.*fn1
In October 1998, defendants Hector Gunaratne and his wife, Rose, and Sumanadasa Perera, as parent and natural guardian of Prashan Perera, separately commenced dental malpractice actions against Stradford. A professional liability policy that Continental issued to Stradford was in effect at that time. The policy required Stradford to notify his insurer of the Gunaratne and Perera actions, gave Continental the right to defend him in those actions, and obligated the insured to "fully cooperate" in the company's litigation and settlement efforts. This cooperation clause explicitly required Stradford's attendance at hearings and trials, as well as his assistance in the securing and giving of evidence and obtaining the attendance of witnesses.
About a month after the underlying malpractice actions were initiated, Stradford notified Continental. Thereafter, Continental's employees and counsel whom the company retained to defend Stradford sought to obtain defendants' treatment records and other materials from him, solicit his views on potential expert witnesses, schedule depositions and meetings, and to discuss potential settlements. These many requests took the form of largely unanswered correspondence and telephone calls to Stradford's home and office, and failed visits by defense counsel to Stradford's office pursuant to prearranged meetings. Stradford ignored the vast majority of Continental's requests or otherwise refused to cooperate with the company. In response, Continental repeatedly warned Stradford that his non-cooperative conduct could jeopardize his coverage. These warnings, however, went unheeded.
Nevertheless, at various times, Stradford indicated an awareness of his duty to cooperate and expressed his willingness to do so. For example, Stradford made multiple promises to provide the requested documents, which he claimed were located on his boat or at his residence. Further, although Stradford's deposition in Gunaratne was rescheduled multiple times due to his unexplained absences, he eventually appeared and was deposed*fn2. Then, after more than four years had passed without his production of a single relevant document, Stradford participated in a July 2, 2003 conference call which he had requested to discuss a possible settlement of Gunaratne.
During that call, Stradford asked for new counsel in both underlying actions, claiming that he had lost confidence in his present attorney's ability to zealously defend him due to the attorney's actions in another malpractice action brought against him. Continental agreed to the request, Stradford's attorney moved to be relieved, and Supreme Court marked all cases pending against Stradford off-calendar, pending the substitution of new counsel. Despite calls and a letter from his new counsel, Stradford never executed the necessary form to effect the requested substitution.
On July 8, 2004, Continental mailed Stradford two detailed letters one each for Gunaratne and Perera. In the main, the letters set forth his history of noncompliance, evasion and broken commitments. They also demanded that Stradford schedule a meeting with his newly-retained counsel for a date on or before August 13, warned that further non-cooperation "may imperil" his coverage, and, given adverse expert findings regarding Stradford's care of defendants, recommended that he consent to settlement of both actions. On August 11, both letters were returned to Continental as "unclaimed." Approximately two months later, on October 13, 2004, Continental's outside counsel sent a disclaimer letter to Stradford. Two days after its disclaimer was issued, Continental commenced the present action, seeking a declaratory judgment that it had no duty to defend or indemnify Stradford in the Gunaratne and Perera actions.
The decision-making process that Continental employed prior to disclaiming and bringing this action was described in the deposition testimony of Thomas Morelli, who by July 8, 2004 was the Continental employee responsible for Gunaratne and Perera. According to him, the "normal protocol" involved a recommendation by him to his director, who would then make a recommendation to Continental's in-house coverage counsel. In addition, in connection with the Gunaratne and Perera disclaimers, Morelli testified that Continental "sought an opinion from outside counsel regarding [its] coverage position."
Continental's decision to disclaim was bolstered by a declaratory judgment issued on June 1, 2004 in two other malpractice actions then pending against Stradford, O'Halloran and Shields. There, the court held that Stradford's failure to respond to multiple letters seeking his cooperation and his absence on trial dates constituted sufficient grounds for a disclaimer of coverage.
In the present action, Continental moved for summary judgment on its declaratory judgment claim that Stradford's non-cooperation had terminated the company's contractual obligation to him*fn3. Defendants cross-moved for summary judgment, arguing that the company's disclaimer was untimely and, in the alternative, that it had not carried its burden of proving Stradford's non-cooperation. Supreme Court granted Continental's motion in all respects and similarly denied the cross-motion. The court concluded that Stradford was not entitled to a defense or indemnification because of his multiple breaches of the cooperation clause.
In a 3-2 decision, the Appellate Division reversed. All members of the panel concluded that Continental had carried its burden of establishing Stradford's non-cooperation. The majority held, however, that Continental's approximately two-month delay in disclaiming measured from August 11, 2004 (the date its final letters were returned unclaimed) was unreasonable as a matter of law. The dissent disagreed, reasoning that Continental's need to carefully analyze Stradford's conduct and to consult with counsel to ensure that the company had discharged its "heavy burden" of attempting to bring about his cooperation prior to disclaiming, supported the conclusion that Continental's delay was "explained and... reasonable under the circumstances" (46 AD3d 604, 605  [Goldstein & Schmidt, JJ., dissenting] [internal quotation omitted]).
Plaintiff appeals from the order of reversal based on a dual dissent on a question of law. We now modify by denying defendants' ...