
    Cosmopolitan Mutual Insurance Company, Respondent, v. Armando Vasquez et al., Defendants, and Edmund Kinyk et al., Appellants.
   Judgment, Supreme Court, New York County, entered on May 5, 1971, unanimously reversed, on the law and on the facts and in the intereste of justice, and the matter remanded for a new trial on the material and relevant issues of fact, with costs and disbursements to abide the event. Appeal from the order of said court, entered on May 18, 1972, denying defendants’ niotion to vacate the judgment or to settle the record on appeal, unanimously dismissed, without costs and without disbursements, as academic. The testimony on the trial was concentrated on the issue of whether the insured gave timely notice of the motor vehicle accident to the liability insurer and the proceedings on the trial and the record before us are inadequate for a proper determination of whether, under the circumstances of this case, the injured parties gave timely and due notice. (See Insurance Law, § 167, subd. 1, pars [c], [d]; Lauritano v. American Fid. Fire Ins. Co., 3 A D 2d 564, affd. 4 N Y 2d 1028; see, also, Marcus v. London & Lancashire Ind. Co., 6 A D 2d 702, affd. 5 N Y 2d 961; Mason v. Allstate Ins. Co., 12 A D 2d 138, 147-148; Aetna Ins. Co. v. Millard, 25 A D 2d 341; Rogers v. Merchants Mut. Cas. Co., 28 A D 2d 919.) Furthermore, we conclude that in the interests of justice and in order that a complete and final determination of all matters in controversy between the parties may be made, a determination of the issue as to the timeliness of the plaintiff’s disclaimer is required. (See Insurance Law, § 167, subd. 8; Allstate Ins. Co. v. Gross, 27 N Y 2d 263; see, also, Tannenbaum v. Cosmopolitan Mut. Ins. Co., 36 A D 2d 588.) The defendants, if they deem it proper and advisable, may move at the opening of the retrial to amend their answers to specifically raise this issue. Concur — Markewich, J. P., Kupferman, Murphy, Steuer and Eager, JJ.  