This is an appeal by the plaintiff from a judgment following a trial without a jury which dismissed the complaint upon the merits.
The plaintiff’s decedent was killed on July 6, 1958 while riding in an automobile owned by Lee S. Parker which was insured by the defendant. In 1959 an action was commenced against Parker, alleging that Parker was the operator of the automobile. The insurer initially undertook to represent Parker, but eventually disclaimed liability and a default judgment was entered against Parker.
This action was commenced pursuant to section 167 (subd. 1, par. [b]) of the Insurance Law, which provides that if a judgment against an insured is not satisfied, an action may be maintained against the insurer for the amount of such judgment. Defendant insurance company interposed a defense of disclaimer on the ground that Parker had f ailed to co-operate with the insurance company as required by the policy.
The trial court, in granting judgment for the defendant found that it had established the disclaimer, from which decision the plaintiff appeals.
Subdivision 5 of section 167 of the Insurance Law provides that if an insurer alleges a defense that the insured failed or refused to co-operate, the burden of proving lack of co-operation shall be upon the insurer. Guidelines for the application of this provision were given in Thrasher v. United States Liab. Ins. Co. (19 NY 2d 159, 168).
*364Upon the trial it was established that the respondent insurance company attempted to secure the co-operation of Parker by interviewing him personally; by advising him of scheduled examinations before trial, which he failed to attend; by making numerous inquiries at the home of his parents, the police and sheriff’s office in the locality; by having their office in California investigate his whereabouts as well as at other distant points and in attempting on occasions to personally contact said Parker and, failing to do so, by writing him letters and performing various and sundry other acts in attempting to locate the said Parker.
On this appeal the defendant, having been successful, is entitled to the most favorable interpretation of the evidence and any fair inferences that flow therefrom. The verdict may only be set aside if it is found to be against the weight of evidence or contrary to the law.
As to the factual issues, the findings in favor of the defendant were not against the weight of evidence and therefore must be affirmed.
In Thrasher v. United States Liab. Ins. Co. (supra, pp. 168, 169), it was stated that the insurer to be successful must demonstrate (1) that it acted diligently in seeking to bring about the insured’s co-operation; (2) that the efforts employed by the insurer were reasonably calculated to obtain the insured’s co-operation; (3) that the attitude of the insured, after his co-operation was sought, was one of willful and avowed obstruction.
In Wallace v. Universal Ins. Co. (18 A D 2d 121, 125) the court said: “ upon a showing by the insurer of an absence of the insured which remains unexplained despite reasonable efforts to locate the insured, ‘ the burden of going forward with the proof and supplying the data necessary to repel the adverse inference, must rest on the assured ’ (Rushing v. Commercial Cas. Ins. Co., 251 N. Y. 302, 304) ”, but there found that the defendant had not made such a showing.
In both of these cases, the plaintiff had been successful at the trial level.
The trial court could find from the evidence that the insurer acted diligently in seeking to obtain the insured’s co-operation and in fact did, in the first instance, obtain such co-operation. There remains the further requirement of the three-prong rule that the attitude of the insured was willful and avowed obstruction.
The uncontradicted evidence in the record shows that when Parker first advised the insurer of the accident he stated that *365the plaintiff’s decedent was operating the car and he so stated in his motor vehicle report; that nothing further was done with reference to the accident until the service of the summons and complaint approximately a year thereafter; that following the service of the papers he continued his co-operation by keeping in contact with the insurer and its representatives, and he failed to attend two scheduled examinations before trial, but in both cases gave a sufficiently justifiable excuse; that he was warned by the .representatives of the insurer that he must continue to keep in contact with the company and his own family so that he would be available when needed to properly defend the action. Although the insurer in its investigation had leads on occasions as to the whereabouts of Parker, they were never able to locate him and, under the circumstances of this particular case, the trial court was justified in inferring that the long absence of Parker without communication was willful and obstructive and that as to the defendant’s proof, the test had been met.
In such circumstances under the procedural rule set forth in Wallace v. Universal Ins. Co. {supra), it then became the responsibility of the plaintiff to go forward and demonstrate that the inferences drawn by the court as to the unexplained absence of the insured, despite reasonable efforts by the insurer, were not justified. This the plaintiff failed to do. There was no direct proof by the plaintiff on this issue and the cross-examination of the insurer’s witness demonstrated that while there might have been other explorations, there was no showing that such would have been successful, nor could it be inferred that the efforts of the insurer were not reasonable.
Upon the present record it does not appear that there was an unreasonable delay as a matter of law on the part of the insurer in reaching its decision or conclusion that the insured had breached the provisions of the policy by failing or refusing to co-operate with it. (Cf. Allstate Ins. Co. v. Gross, 27 N Y 2d 263.)
The trial court was correct in dismissing the complaint as a matter of law and on the merits.
A further contention was advanced by the plaintiff as to proper notice. Subdivision 8 of section 167 of the Insurance Law states as follows: “ 8. If under a liability policy delivered or issued for delivery in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident occurring within this state, it shall give written notice as soon as is reasonably possible of *366such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant.”
The evidence discloses that notice of disclaimer was forwarded to the insured and- that a copy thereof was sent to the attorney for the then plaintiff and that it was received by him. Although the original plaintiff claimed that she was not notified by her attorney of the disclaimer until .at or about the trial of the action, there was no showing of any prejudice to her or her .cause. Under such circumstances, the service should be deemed sufficient although it might be argued that the statute requires that a written notice be given to the ‘‘ injured person or any other claimant ”, .as well as her attorney.
The judgment should be affirmed, without costs.