The facts are correctly depicted in the majority opinion: Kalfus had supplied a dough mixing machine to Mobay; Chemaly, Mobay’s employee, caught his hand in the machine and was released therefrom by 'firemen ¡who disassembled it; the machine was reassembled, and an officer of Kalfus summoned to inspect it and approve the reassembly; he was not advised of any claim against his company but he was told what had happened; suit was commenced by Chemaly against Kalfus almost three years later. The majority opinion cites 875 Forest Ave. Corp. v. Aetna Cas. & Sur. Co. (37 A D 2d 11, affd. 30 N Y 2d 726) and Security Mut. Ins. Co. of N. Y. v. Acker-Fitzsimons (31 N Y 2d 436) in support of a conclusion for affirmance. These cases cannot on the facts here be read to support that holding. Indeed, the latter case, excerpted in pertinent part and redacted by insertion of words applicable to this factual situation, would read as follows (pp. 442-443): “ The recent case of 875 Forest Ave. Corp. v. Aetna Cas. Co. [citation], relied upon by the majority at the Appellate Division, is distinguishable. In that case a three-year-old child fell from a fourth floor apartment window and was killed. It was held that delayed notice of1 the accident did not breach the notice provision where the insured, acting as a reasonable and prudent *578person, believed he was not liable. That accident, however, simply was not one which would lead a reasonable person to envision any possible liability on the part of the insured * * * Here, the insureds had information * * * [about an accident involving a workman whose hand had been caught in their machine in circumstances with overtones of Workmen’s Compensation] * * * yet they failed to pursue the facts or reasonably evaluate their potential liability. In sum, we conclude that the insureds failed to exercise reasonable care and diligence in ascertaining the facts about the alleged accident and in evaluating their potential liability. Thus, the otherwise unreasonable delay * * * in giving notice may not be excused or explained on the basis of ‘ lack of knowledge ’ or a ‘belief of nonliability.’ ” (Adapted, as indicated, by insertion of bracketed words in language quoted from Security Mutual.) The judgment in favor of defendant Kalfus should, accordingly be reversed, and judgment awarded to plaintiff-appellant declaring breach by defendant-respondent Kalfus of its agreement with plaintiff-respondent of timely notice of accident.
Kupferman, Murphy and Tilzer, J J., concur with Lupiano, J.; Markewich, J. P., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on July 10, 1974, affirmed. Respondents shall recover of appellant one bill of $60 costs and disbursements of this appeal.