Lancer Ins. Co. v. Marine Motor Sales Inc.

• Decision Date: 31 May 2011
• Parties: LANCER INSURANCE COMPANY, plaintiff-respondent,v.MARINE MOTOR SALES, INC., et al., defendants-respondents, et al., defendants,Travelers Insurance Group, appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1318

924 N.Y.S.2d 160

2011 N.Y. Slip Op. 04637

LANCER INSURANCE COMPANY, plaintiff-respondent,

v.MARINE MOTOR SALES, INC., et al., defendants-respondents, et al., defendants,Travelers Insurance Group, appellant.

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

May 31, 2011.

Feeney & Associates, PLLC, Hauppauge, N.Y. (Kenneth F. Whitman of counsel), for appellant.Curtis, Vasile P.C., Merrick, N.Y. (Patricia M. D'Antone of counsel), for plaintiff-respondent.MARK C. DILLON, J.P., RUTH C. BALKIN, RANDALL T. ENG, and SHERI S. ROMAN, JJ.

[924 N.Y.S.2d 161 , 84 A.D.3d 1319]

In an action for declaratory relief, the defendant Travelers Insurance Group appeals, as limited by its brief, (1) from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered March 2, 2010, as granted those branches of the plaintiff's cross motion which were for summary judgment declaring that the plaintiff is not obligated under a certain policy of insurance to provide coverage to, or to defend and indemnify, the defendants Marine Motor Sales, Inc., and John Parks for claims arising out of an incident allegedly occurring on October 17, 2007, and denied that branch of its motion which was for summary judgment declaring that the plaintiff is obligated under the subject policy of insurance to defend and indemnify those defendants for such claims, and (2) from so much of a judgment of the same court dated April 20, 2010, as, upon the order entered March 2, 2010, declared that the plaintiff is not obligated under the subject policy of insurance to provide coverage to, or to defend and indemnify, the defendants Marine Motor Sales, Inc., and John Parks for claims arising out of the incident allegedly occurring on October 17, 2007.

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

ORDERED that the judgment is reversed insofar as appealed from, on the law, that branch of the motion of the defendant Travelers Insurance Group which was for summary judgment declaring that the plaintiff is obligated under a certain policy of insurance to defend and indemnify the defendants Marine Motor Sales, Inc., and John Parks for claims arising out of an incident allegedly occurring on October 17, 2007, is granted, those branches of the plaintiff's cross motion which were for summary judgment declaring that it is not obligated under the subject policy of insurance to provide coverage to, or to defend and indemnify, those defendants for such claims are denied, it is declared that the plaintiff is obligated under the subject policy of insurance to defend and indemnify the defendants Marine Motor Sales, Inc., and John Parks for claims arising out of the incident allegedly occurring on October 17, 2007, and the order entered March 2, 2010, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The appeal from the intermediate order must be dismissed, as 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 the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

Shortly after midnight on October 17, 2007, a pick-up truck owned by the defendant Marine Motor Sales, Inc. (hereinafter Marine), and operated by the defendant John Parks, an employee of Marine, in which the defendant Donald Tierney was a passenger, collided with a motor vehicle operated by the defendant Luis Sanchez. As a result of the accident, both Tierney and Sanchez allegedly sustained serious physical injuries.

In December 2007, Tierney commenced an action in the Supreme Court, Kings County, against Marine and Sanchez to recover damages for personal injuries resulting from the accident. Similarly, Sanchez commenced an action in the Supreme Court, Richmond County, against Marine and Parks to recover damages for personal injuries resulting from the accident.

At the time of the accident, Marine had a “Garage Dealer's” policy of insurance (hereinafter the Policy) with the plaintiff, Lancer Insurance Company (hereinafter the plaintiff). Tierney had an automobile insurance policy with Travelers Indemnity Company, incorrectly sued herein as Travelers Insurance Group (hereinafter the appellant), which, inter alia, provided for Supplemental Uninsured/Underinsured Motorists benefits in the event Tierney was injured in connection with a collision involving an uninsured or underinsured motor vehicle. In December 2007, the plaintiff informed Marine in writing that it was disclaiming coverage under the Policy for claims arising out of the subject accident, since, according to the plaintiff, the accident did not result from Marine's garage operations but, rather, arose out of Parks's personal use of the subject vehicle.

In January 2008, the plaintiff commenced this action against, amongst others, Marine, Parks, Tierney, Sanchez, and the appellant seeking declaratory relief relative to its obligations under the Policy for claims arising out of the subject accident. After joinder of issue and discovery, the appellant moved, inter alia, for summary judgment declaring that the plaintiff is obligated under...