Lauritano v. American Fidelity Fire Ins. Co.

Decision Date25 June 1958
Citation4 N.Y.2d 1028,177 N.Y.S.2d 530,152 N.E.2d 546
Parties, 152 N.E.2d 546 Philip LAURITANO, Plaintiff-Respondent, v. AMERICAN FIDELITY FIRE INSURANCE COMPANY and American Universal Insurance Company, Defendants-Appellants, and Standard Accident Insurance Company, Defendant.
CourtNew York Court of Appeals Court of Appeals

Appeal from Supreme Court, Appellate Division, First Department, 3 A.D.2d 564, 162 N.Y.S.2d 553.

Automobile passenger, who had obtained a default judgment against lessor and lessee of tractor-trailer for injuries sustained in collision between automobile and tractor-trailer, and who had been unable to collect the judgment, brought action under Section 167 of the Insurance Law, Consol.Laws, c. 28, against the automobile liability insurers of the lessor and the lessee.

The Supreme Court, Trial Term, New York County, Vincent A. Lupiano, J., 2 Misc.2d 930, 147 N.Y.S.2d 748, entered judgment dismissing the complaint, on ground that noncompliance with policy provisions, requiring giving of notice of accident and forwarding of suit papers to insurers, precluded recovery, and the automobile passenger appealed.

The Appellant Division, Botein, J., 3 A.D.2d 564, 162 N.Y.S.2d 553, affirmed the judgment as to the insurer of the lessor but reversed the judgment as to the insurer of the lessee and held that where automobile passenger had given notice to insurers as soon as it was reasonably possible for him to do so, he was not precluded from recovering from insurer of lessee, though lessee had failed to comply with policy condition that process received by lessee be forwarded to insurer immediately, but that automobile passenger could not recover from insurer of lessor, where policy specifically provided that it did not apply while motor vehicle was being used in business of any person or organization to which the motor vehicle was rented. Frank and Rabin, JJ., dissented.

The insurers of the lessee appealed to the Court of Appeals.

Cusack & Shumate, New York City (William L. Shumate, New York City, of counsel), for defendant-appellant American Fidelity Fire Ins. Co.

Mendes & Mount, New York City ( Brendan C. Kelly, New York City, of counsel), for defendant-appellant American Universal Co.

Joshua J. Nasaw, New York City (William G. Mulligan, Joshua J. Nasaw, New York City, and Richard B. Lillich, Albany, of counsel), for plaintiff-respondent.

Judgment affirmed, with costs.

All concur.

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