The findings in favor of the respondent were against the weight of the evidence. Respondent has failed to carry the burden placed upon it by subdivision 5 of section 167 of the Insurance Law to prove lack of co-operation by its insured.
In Thrasher v. United States Liab. Ins. Co. (19 N Y 2d 159, 168-169), the Court of Appeals cogently stated: “ Since the defense of lack of co-operation penalizes the plaintiff for the action of the insured over whom he has no control, and since the defense frustrates the policy of this State that innocent victims of motor vehicle accidents be recompensed for the injuries inflicted upon them (Wallace v. Universal Ins. Co., 18 A D 2d 121, affd. 13 N Y 2d 978; Kehoe v. Motorists Mut. Ins. Co., 20 A D 2d 308, 310; Vehicle and Traffic Law, § 310, subd. [2]), the courts have consistently held that the burden of proving the lack of co-operation is a heavy one indeed. Thus, the insurer must demonstrate that it acted diligently in seeking to bring about the insured’s co-operation (Amatucci v. Maryland Cas. Co., 25 A D 2d 583; Rosen v. United States Fid. & Guar. Co., 23 A D 2d 335 [overruled on other grounds by Matter of Vanguard Ins. Co. (Polchlopek), 18 N Y 2d 376]; National Grange Mut. Ins. Co. v. Lococo, 20 A D 2d 785, affd. 16 N Y 2d 585; Kehoe v. Motorists Mut. Ins. Co., supra); that, the efforts employed by the insurer were reasonably calculated to obtain the insurer’s co-operation (National Grange Mut. Ins. Co. v. Lococo, supra; Wallace v. Universal Ins. Co., supra); and that the attitude of the insured, after his co-operation was sought, was one of ‘ willful and avowed obstruction ’ (Coleman v. New Amsterdam Gas. Co., 247 N. Y. 271, 276; Americcm Sur. Co. v. Diamond, 1 N Y 2d 594).”
*367The record does not support a finding that the insurer has sustained its three-pronged burden of proof requirement of the Thrasher case (supra). It must be conceded that the insured co-operated at least until his disappearance, since he filed an accident report immediately following the accident, appeared for interviews at the insurer’s request on two occasions and provided the insurer’s attorney with an affidavit.
On the other hand, the respondent put the accident report in “ dead storage ” for about a year. Furthermore, the respondent was not “ diligent ” in its attempt to locate Parker. There was an initial delay of eight months between December 29, 1959 and September 1, 1960. Then after making an attempt to contact him in September, 1960, there is no evidence in the record to indicate any further effort until December 13, 1961. Nor were the efforts to locate Parker “ reasonably calculated to obtain the insured’s co-operation”. They consisted merely of letters sent to Parker and his parents, inquiries of the police on one occasion and one investigation of a suspected address in California. The insurer did not check the post office for a forwarding address, did not check with Parker’s employer, did not attempt to make inquiries concerning a divorce action which was being brought by Parker’s wife, and did not investigate after receiving information that Parker was in Florida.
Appellant’s contention that the insurer waived its right to disclaim liability by failing to comply with the requirement of subdivision 8 of section 167 of the Insurance Law that an insurer give notice to the injured person “ as soon as is reasonably possible ” of a disclaimer of liability, is also meritorious. Assuming, arguendo, that the insured’s disappearance constituted a lack of co-operation, the delay of 20 months after the insurer became aware of it, constituted a waiver of the defense of lack of co-operation. The insured could not be located in September, 1960, and notice of disclaimer was not received by the appellant’s attorney until June 6, 1962. (Matter of Kelly v. MVAIC, 30 A D 2d 516; Cohen v. Atlantic Nat. Ins. Co., 24 A D 2d 896; Appell v. Liberty Mut. Ins. Co., 22 A D 2d 906, affd. 17 N Y 2d 519.)
The Court of Appeals recently ruled that in order for an insurer to be entitled to disclaim liability, it shall give written notice of such disclaimer within a reasonable time after the ‘ ‘ insurer first learns of the accident or of grounds for its disclaimer ” (Allstate Ins. Co. v. Gross, 27 N Y 2d 263). In Allstate Ins. Co. v. Gross (supra) it was held that seven months from the time that the insurer first learned of the grounds of disclaimer was unreasonable as a matter of law.
*368We also disagree with the holding of the majority that there was no showing of any prejudice to appellant. The former plaintiff incurred expenses in connection with the prosecution of the action and the preparation for trial, being led to believe that respondent would defend its insured and pay any judgment recovered against him to the limit of coverage under his policy of insurance.
In any event, in Allstate Ins. Co. v. Gross (supra) the Court of Appeals also declared that the statute does not require a finding that the insurer’s delay in disclaiming prejudiced the injured party.
For the above reasons, we respectfully dissent and vote for reversal.
Reynolds and Staley, Jr., JJ., concur with Herlihy, P. J.; Grbenblott and Sweeney, JJ., dissent and vote to reverse in a separate opinion.
Judgment affirmed, without costs.