In Allstate Insurance Company v. Durand, 286 AD2d 407, 729 N.Y.S.2d 192 [2nd Dept. 2001], a declaratory action between an insurance company and an insurer centering on the alleged non-cooperation of the insured with the carrier regarding the defense of the underlying lawsuit, the Appellate Division, Second Judicial Department, refused to find a willful failure by the insured to cooperate.
The appellate court stated that the plaintiff insurer failed to demonstrate that the insureds were responsible or intentionally uncooperative so as to warrant a disclaimer of coverage.
The Second Department observed: "Only once was his defendant's deposition rescheduled because he was too ill to attend." Id. at 408.