Colonial Penn Insurance Company v. New York Central Mutual Insurance Company

• Decision Date: 20 June 2005
• Docket Number: 2004-08149.,2005-00241.
• Citation: 2005 NY Slip Op 05245,19 A.D.3d 532,798 N.Y.S.2d 74
• Parties: COLONIAL PENN INSURANCE COMPANY, Respondent, v. NEW YORK CENTRAL MUTUAL INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

19 A.D.3d 532

798 N.Y.S.2d 74

2005 NY Slip Op 05245

COLONIAL PENN INSURANCE COMPANY, Respondent, v.NEW YORK CENTRAL MUTUAL INSURANCE COMPANY, Appellant.

2004-08149.

2005-00241.

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 20, 2005.

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify George E. Heffran, Frances T. Heffran and Matthew Heffran in three underlying actions to recover damages for personal injuries entitled Zerilli v Mella, Bednar v Mella, and Mella v Heffran, commenced in the Supreme Court, Richmond County, under index Nos. 13437/95, 11212/96, and 12122/96, respectively, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Davis, J.), entered July 26, 2004, which granted that branch of the plaintiff's motion which was for summary judgment declaring that it is obligated to indemnify the plaintiff for the amounts paid in the underlying actions and denied its cross motion for summary judgment, and (2) a judgment of the same court entered September 27, 2004, which, inter alia, in effect, declared that it was obligated to reimburse the plaintiff for payments made in connection with the subject motor vehicle accident and is in favor of the plaintiff and against it in the principal sum of $161,461.56.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho,39 NY2d 241, 248[1976]).The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a][1]).

On June 5, 1993, the plaintiff issued a one-year motor vehicle liability insurance policy to nonparty Frances Heffran which covered, inter alia, a 1988 Isuzu Trooper.On March 15, 1994, it issued a notice of cancellation due to nonpayment of premium effective April 2, 1994.Assuming that the cancellation was ineffective either because it was improperly mailed to the insured or was not timely filed with the Commissioner of the Department of Motor Vehicles(seeVehicle and Traffic Law § 313), it is undisputed that Ms. Heffran's husband, George E. Heffran, subsequently procured an assigned...