(dissenting). The judgment of the trial court directing the plaintiff insurance company to provide a defense for the defendant should be affirmed. The insurer’s heavy burden of proving lack of co-operation by the insured has not been met in this case. The insurer has failed to 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, and (3) that the attitude of the insured was one of “ willful and avowed obstruction ” (Thrasher v. United States Liab. Ins. Co., 19 N Y 2d 159). The record reveals that, the defendant did not *290know what an examination before trial was about, that he was nervous, and he was not made aware of the effect on him of his failure to attend, since he was only told that ‘1 he might end up with no insurance ” (emphasis supplied) if he failed to co-aperate. Further, the defendant was never actually given an opportunity to attend and participate at an examination before trial (which he could have decided to do up until the last minute) because it was canceled by the appellant insurer. There was no further hearing scheduled, nor was there a trial. Under these circumstances, the defendant’s attitude cannot be considered “ willful and avowed obstruction.” A breach of the insured’s co-operation clause must be substantial and material to form the basis for a disclaimer (31 N. Y. Jur., Insurance, §§ 1337, 1339).
It should be further observed that liability insurance is intended not only to indemnify the assured but also to protect members of the public who may be injured through negligence (Pennsylvania Threshermen & Farmers’ Mut. Cas. Co. v. Owens, 238 F. 2d 549). I agree with the trial court that the insured’s lack of understanding should have been recognized by the insurer which, in the trial court’s view, did not have a right to disclaim in reliance on an unanswered letter and the original personal interview without making a second attempt to interview the insured personally to make certain that he fully understood his situation. The determination of the trial court that the insurer’s disclaimer was invalid is not, as the majority concludes, against the weight of the evidence.
Witmeb, Motjlb and Simons, JJ., concur with Del Vecchio, J. P.; Cardamone, J., dissents and votes to affirm in opinion.
Judgment reversed on the law and facts without costs and judgment entered in favor of appellant in accordance with opinion by Del Vecchio, J. P.