Ghaly v. First American Title Ins. Co. of New York
| Decision Date | 17 June 1996 |
| Citation | 644 N.Y.S.2d 770,228 A.D.2d 551 |
| Parties | Nabil N. GHALY, et al., Appellants, v. FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Nabil N. Ghaly and Mimi B. Ghaly, S. Huntington, pro se.
DeVagno, Borchert, Levine & LaSpina, P.C., Whitestone (Eileen Schmerler, of counsel), for respondent.
Before MANGANO, P.J., and SULLIVAN, ALTMAN and HART, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for breach of contract and negligence, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Robbins, J.), dated July 26, 1995, as (1) granted the defendant's cross motion for summary judgment dismissing the complaint as time-barred, and (2) denied, as academic, their motion to dismiss stated affirmative defenses in the answer.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof which granted that branch of the defendant's cross motion which was for summary judgment dismissing the first cause of action in the complaint as time-barred, and by substituting therefor a provision denying that branch of the defendant's cross motion, and (2) by deleting the provision thereof which denied, as academic, the plaintiffs' motion to dismiss stated affirmative defenses in the answer; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs, and the matter is remitted to the Supreme Court, Nassau County, for a determination with respect to the plaintiffs' motion to dismiss stated affirmative defenses in the answer.
A cause of action based on an insurer's alleged breach of a contractual duty to defend accrues only when the underlying litigation brought against the insured has been finally terminated and the insurer can no longer defend the insured even if it chooses to do so (see, Colpan Realty Corp. v. Great Am. Ins. Co., 83 Misc.2d 730, 732, 373 N.Y.S.2d 802; Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 29, 544 N.Y.S.2d 359; see also, Ginn v. State Farm Mut. Auto. Ins. Co., 417 F.2d 119; Boyd Bros. Transp. Co. v. Fireman's Fund Ins. Co., 540 F.Supp. 579, affd. 729 F.2d 1407 [11th Cir]; Moffat v. Metropolitan Cas. Ins. Co., 238 F.Supp. 165; Kielb v. Couch, 149 N.J.Super. 522, 374 A.2d 79; Employers' Fire Ins. Co. v. Continental Ins. Co., 326 So.2d 177; Continental Cas. Co. v. Florida Power & Light Co., 222 So.2d 58; Gilbert v. American Cas. Co. of Reading, 219 So.2d 84,...
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