Fish King Enterprises v. Countrywide Ins. Co.

• Decision Date: 04 October 2011
• Citation: 88 A.D.3d 639,2011 N.Y. Slip Op. 06997,930 N.Y.S.2d 256
• Parties: FISH KING ENTERPRISES, et al., appellants,v.COUNTRYWIDE INSURANCE COMPANY, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 639
930 N.Y.S.2d 256
2011 N.Y. Slip Op. 06997

FISH KING ENTERPRISES, et al., appellants,
v.
COUNTRYWIDE INSURANCE COMPANY, respondent, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 4, 2011.

[930 N.Y.S.2d 257]

Cullen and Dykman LLP, Brooklyn, N.Y. (Andrew Giuseppe Vassalle, Frank Lourenso, and Djordje Caran of counsel), for appellants.Thomas Torto, New York, N.Y., for respondent.MARK C. DILLON, J.P., RANDALL T. ENG, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

[88 A.D.3d 640] In an action, inter alia, for a judgment declaring that the defendant Countrywide Insurance Company is obligated to defend and indemnify the plaintiffs as third-party defendants in an underlying action entitled Lee v. Hino Motors, Ltd., commenced in the Supreme Court, Kings County, under Index No. 8263/99, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated August 31, 2009, as denied that branch of their motion which was for summary judgment declaring that the defendant Countrywide Insurance Company is obligated to defend them as third-party defendants in the underlying action and granted that branch of the cross motion of the defendant Countrywide Insurance Company which was, in effect, for summary judgment declaring that the

[930 N.Y.S.2d 258]

defendant Countrywide Insurance Company is not obligated to defend them as third-party defendants in the underlying action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiffs' motion which was for summary judgment declaring that the defendant Countrywide Insurance Company is obligated to defend them as third-party defendants in the underlying action is granted, that branch of the cross motion of the defendant Countrywide Insurance Company which was, in effect, for summary judgment declaring that it is not obligated to defend the plaintiffs as third-party defendants in the underlying action is denied, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant Countrywide Insurance Company is obligated to defend the plaintiffs as third-party defendants in the underlying action.

The plaintiff Jian Bin Yang was involved in a traffic accident while making deliveries for his employer, the plaintiff Fish King Enterprises (hereinafter Fish King). Yang's coworker, who was a passenger in the vehicle, allegedly suffered injuries and commenced a personal injury action against, among others, the manufacturers of the vehicle (hereinafter the underlying action). The defendants in the underlying action commenced a third-party action against the plaintiffs here for contribution and indemnification.

Fish King had a business auto insurance policy with the defendant Countrywide Insurance Company (hereinafter Countrywide). Through its broker, Fish King timely notified Countrywide of the accident. The broker also forwarded copies of the second third-party complaint, received by Countrywide on January 9, 2002, and the police report and summons and complaint [88 A.D.3d 641] in the underlying action, received by Countrywide on January 17, 2002. On March 6, 2002, Countrywide disclaimed coverage, citing an employee exclusion.

The plaintiffs commenced this action, inter alia, for a judgment declaring that Countrywide is obligated to defend and indemnify them as third-party defendants in the underlying action. The plaintiffs moved for summary judgment declaring that Countrywide was obligated to defend and indemnify them as third-party defendants in the underlying action, and Countrywide cross-moved, in effect, for summary judgment declaring...