Lakeside Const., Inc. v. Depew & Schetter Agency, Inc.
| Decision Date | 16 October 1989 |
| Citation | 154 A.D.2d 513,546 N.Y.S.2d 136 |
| Court | New York Supreme Court — Appellate Division |
| Parties | LAKESIDE CONSTRUCTION, INC., et al., Appellants-Respondents, v. DEPEW & SCHETTER AGENCY, INC., Respondent-Appellant, Hanover Insurance Company, Respondent, et al., Defendants. |
C. Raymond Nelson, Douglaston (Richard S. Brown, Jr., of counsel), for appellants-respondents.
Cook, Tucker, Netter & Cloonan, P.C., Kingston (William N. Cloonan, of counsel), for respondent.
Before MANGANO, J.P., and LAWRENCE, KUNZEMAN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action for a judgment declaring the rights and obligations of the parties under a binder for comprehensive liability insurance, the plaintiffs appeal (1) as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Beisner, J.), dated March 18, 1988, as granted so much of the defendant Hanover Insurance Company's motion which was for summary judgment dismissing the complaint insofar as it is asserted as against it, and (2) from so much of a judgment of the same court, entered May 5, 1988, as is in favor of the Hanover Insurance Company and against them, and the defendant Depew & Schetter Agency Inc., cross-appeals from the same judgment.
ORDERED that the plaintiffs are awarded one bill of costs, payable by Hanover Insurance Company.
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 (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].
In this action, the plaintiffs seek, inter alia, a declaration that the defendant Hanover Insurance Company (hereinafter Hanover) is required to defend and indemnify them with respect to a claim which arose on August 18, 1986. Hanover's alleged obligation is based on an insurance binder issued by the defendant Depew & Schetter Agency, Inc. (hereinafter Depew) on August 8, 1986. Hanover moved for summary judgment on the ground that Depew was discharged as Hanover's agent on June 12, 1986, and was therefore without authority to bind Hanover after that date. The Supreme Court granted the defendant Hanover's motion for summary judgment, finding no triable issues of fact with respect to Depew's apparent authority in issuing the subject binder....
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...contentions must be viewed "in a light most favorable to the party opposing the motion." Lakeside Constr. v. Depew & Schetter Agency, 154 A.D.2d 513, 515-515, 546 N.Y.S.2d 136 (2d Dept. 1989). Here, the Trustee is not now seeking adjudication of the amounts of overpayment. Rather, he asks f......
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