Bates v. Cole

• Decision Date: 29 January 1990
• Citation: 550 N.Y.S.2d 721,157 A.D.2d 813
• Parties: Dorothy BATES, Plaintiff, v. Astrid COLE, Defendant third-party Plaintiff-Appellant, et al., Defendants; Government Employees' Insurance Company, third-party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 721

550 N.Y.S.2d 721

157 A.D.2d 813

Dorothy BATES, Plaintiff, v. Astrid COLE, Defendant third-party Plaintiff-Appellant, et al., Defendants Government Employees' Insurance Company, third-party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Jan. 29, 1990.

Community Legal Assistance Corp., Hempstead (Peter Margulies, of counsel; James Daguanno, Rosemarie Falussy and Neil Tygar, on the brief), for defendant third-party plaintiff-appellant.

Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., of counsel), for third-party defendant-respondent.

Before THOMPSON, J.P., and BROWN, EIBER and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendant and third-party plaintiff Astrid Cole appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated August 10, 1988, which denied her motion to compel the third-party defendant Government Employees Insurance Company to defend her in the action by the plaintiff and which awarded summary judgment to the third-party defendant Government Employees Insurance Company.

ORDERED that the order is affirmed, without costs or disbursements.

On March 2, 1984, the plaintiff Dorothy Bates was injured when she fell down a flight of steps in a building owned by the defendants Margaret Huebner and Michael Moe. Their mother, the defendant and third-party plaintiff Astrid Cole, who lived in the building, had leased a portion of the premises to Bates. At the time of the accident, at least two other persons resided in the building. Cole only notified the third-party defendant and insurer Government Employees' Insurance Company (hereinafter GEICO) of this occurrence on January 15, 1986, after receiving a letter from Bates' counsel dated December 27, 1985. By letters dated February 6, 1986, and February 23, 1986, GEICO disclaimed coverage based on the untimeliness of the notice as well as the fact that Cole had breached an exclusionary clause in the insurance policy. This action was commenced by Bates against Cole, Huebner and Moe who then initiated a third party action against GEICO.

The relevant clause within the policy states, in effect, that coverage for personal liability and for medical payments to others is excluded if the premises are rented, in part, for use as a residence by more than two roomers or boarders. In the instant case, Cole admitted that at the time of the occurrence, in addition to Bates, there was a Mr. Hatton and a Ms. Bergart also residing as...