In State of New York v. AMRO Realty Corp. (936 F.2d 1420 [2nd Cir. 1991]) the particular phrase in the disclaimer letter reserved only the insurer's right to "rely on additional reasons for disclaimer should they become apparent in the future" (id., at 1433, fn 13 ). The Second Circuit noted that this particular reservation of rights could not be read to preclude waiver, "as the late notice defense did not 'become apparent" after the ... complaint was filed, but rather was evident at the time" the disclaimer letter was issued (id.).
Further, in the body of the decision, the court noted that "we do not address here the case where the insurer's disclaimer of coverage based on specified grounds is accompanied by an express and unequivocal statement that other grounds for disclaimer are reserved and not waived" (id.).
The Second Circuit held that, under New York law, "an insurer is deemed, as a matter of law, to have intended to waive a defense to coverage where other defenses are asserted, and where the insurer possesses sufficient knowledge (actual or constructive) of the circumstances regarding the unasserted defense."