Garcia v. Motor Vehicle Acc. Indemnification Corp.
| Decision Date | 05 March 1963 |
| Citation | 7 A.L.R.3d 817,238 N.Y.S.2d 195,18 A.D.2d 62 |
| Parties | , 7 A.L.R.3d 817 Carmen GARCIA, an infant under the age of 14 years, by her Guardian ad Litem, Petra Garcia, and Petra Garcia, Plaintiffs-Respondents, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Patrick J. Hughes, New York City, of counsel (John N. Reid, New York City, with him on the brief, Watters & Donovan, New York City, attorneys), for appellant.
Leon H. Gildin, New York City, for respondents.
Before RABIN, J. P., and STEVENS, EAGER, STEUER and BASTOW, JJ.
Defendant moved to dismiss the complaint in this action for a declaratory judgment. There has been some confusion as to the proper disposition of a motion to dismiss an action for this relief. Where on the stated facts no case is made out showing plaintiff has a right to a declaration at all, it is, of course, proper to grant the motion. The difficulty arises where a proper case for a declaration is set out but the particular declaration sought is not warranted. There is merit of the claim is not a relevant factor and the action should be allowed to proceed to trial and judgment (Rockland Light and Power Co. v. City of New York, 289 N.Y. 45, 43 N.E.2d 803). Where, however, defendant concedes the facts as alleged not only constructively on the motion to dismiss but actually, the court may proceed to a determination of those rights, if that is the request of the defendant (German Masonic Temple Ass'n of City of New York v. City of New York, 279 N.Y. 452, 18 N.E.2d 657). If in such a situation the court concludes that the declaration on the stated facts does not warrant the declaration sought or the relief demanded in the complaint, whether disposition is by way of granting the motion to dismiss or judgment on the pleadings is not a matter of significance.
The complaint alleges that the infant plaintiff suffered injuries on May 20, 1961. On that day one Chapel, the owner of an automobile truck was making a delivery of rugs to the premises located at 366 East 156th Street. In order to unload the truck, Chapel's driver attempted to release a ladder that formed a part of the fire escape on the building so that the ladder would rest on the steps of the building. The ladder did not descend the whole distance and the driver left it suspended about six feet above the stoop. Shortly thereafter the ladder feel, striking and injuring the plaintiff. The complaint further alleges that Chapel had liability insurance on the truck issued by National Grange Mutual Insurance Company, and the policy afforded coverage for persons injured as a result of loading or unloading the truck. The complaint further alleges that the insurance company has disclaimed liability because of the failure of its assured to give notice of the accident. The declaration sought is that the word 'accident' in Article 17-A of the Insurance Law includes any accident that would be covered by the policy and that defendant, Motor Vehicle Accident Indemnification Corporation (MVAIC) be required to entertain plaintiff's claim on the merits.
The only issue presented is that tendered by the meaning of the word 'accident'. Defendant concedes that if the word embraces the incident described in the complaint it must entertain plaintiff's claim. The statutory phrase in question is in the first section of Article 17-A (§ 600) which is devoted to the declaration of purpose and states it to be the securing of compensation to victims of 'motor vehicle accidents' caused by uninsured or hit-and-run drivers. The question is whether the legislature meant to include the perils of loading and unloading in the term 'motor vehicle accidents'.
It is quite evident from the scheme of the statute (Art. 17-A) that the legislature intended to supply compensation through MVAIC to the effect that the claims would be recognized and the claimants compensated as if the...
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