Peka, Inc. v. Kaye

CourtUnited States State Supreme Court (New York)
Writing for the CourtEDER
Citation145 N.Y.S.2d 156,208 Misc. 1003
Decision Date14 October 1955
PartiesPEKA, Inc., Plaintiff, v. A. Stanley KAYE, defendant. A. Stanley KAYE, defendant and third-party plaintiff, v. John DOE, Richard Roe and others, parties intended being underwriters, doing business as Lloyd's of London, Ltd., third-party defendants.

Page 156

145 N.Y.S.2d 156
208 Misc. 1003
PEKA, Inc., Plaintiff,
v.
A. Stanley KAYE, defendant.
A. Stanley KAYE, defendant and third-party plaintiff,
v.
John DOE, Richard Roe and others, parties intended being
underwriters, doing business as Lloyd's of London,
Ltd., third-party defendants.
Supreme Court, Bronx County.
Oct. 14, 1955.

Page 157

[208 Misc. 1005] Shirley P. Thau, New York City, by Alfred S. Julian, New York City, of counsel, for third-party plaintiff, opposed.

Mendes & Mount, New York City, by George W. Clark, New York City, of counsel, for third-party defendants, for the motion.

EDER, Justice.

This is a motion by the underwriters, doing business as Lloyd's of London, Ltd. (herein referred to as Lloyd's), to dismiss pursuant to Rule 106 a third-party complaint as insufficient in law. The motion is directly based on subdivision 3 of section 167 of the Insurance Law, excluding from insurance coverge 'any liability of an insured because of death of or injuries to his or her spouse * * * unless express provision relating specifically thereto is included in the policy.'

Since 1937, when this enactment went into effect simultaneously with the amendment of section 57, Domestic Relations Law, granting either spouse a right of action for personal injuries sustained as a result of the other's negligence, there have been numerous cases wherein the spouses endeavored in more or less ingenious fashion to avoid the impact of the exclusionary provision. But the courts have consistently refused to sanction any maneuver, however indirect, to evade the plain intendment of

Page 158

the law. The guiding principle was thus stated in Fuchs v. London & Lancashire Indemnity Co., 258 App.Div. 603, 605, 17 N.Y.S.2d 338, 440: 'These simultaneous enactments disclose a considered legislative intent to create a right of action theretofore denied, and at the same time to protect insurance carriers against loss through collusive actions between husband and wife.'

Here we have a rather interesting variation in factual background and procedural steps taken by the parties from the usual situation encountered in this field.

The policy was issued by Lloyd's, which is not licensed to conduct an insurance business in this state, through its Montreal office and delivered to the assured, a New York resident. It was a standard certificate of aircraft and aviation insurance which, among other terms, provided for indemnification of the insured against all sums which he should become legally liable to pay as compensation for injuries to passengers while being carried in the small airplane owned by the insured. Some tiem thereafter, by proper indorsement, the insured's title was changed to 'Dr. A. Stanley Kaye and Peka, Inc.,' and Dr. [208 Misc. 1006] Kay's home address in New York City stated as the address of both. Peka, Inc., was a New York corporation and Dr. Kaye an officer thereof.

On August 16, 1948, the plane, piloted by De. Kaye, crashed at a Pennsylvania airport, causing serious injuries to Dr. Kaye's wife, a passenger at the time. In January, 1949, she commenced an action in this state against Peka, Inc., as owner of the plane, to recover damages for personal injuries. Lloyd's defended on behalf of Peka, Inc. After trial judgment was entered in her favor on May 5, 1953, and said judgment was affirmed on appeals to the Appellate Division, 283 App.Div. 865, 130 N.Y.S.2d 13, and the Court of Appeals, 307 N.Y. 894, 123 N.E.2d 89. In December, 1954, Lloyd's paid on behalf of Peka, Inc., the sum of $27,703.99 in satisfaction of the judgment.

Thereafter Lloyd's attorneys instituted this action in the name of Peka, Inc., against Dr. Kaye for recovery of the sum paid by the corporation to Mrs. Kaye, together with the sums paid as fees and expenses in the defense of her action. The complaint of Peka, Inc., alleged that the accident was due entirely to the negligence of the pilot, Dr. Kaye, and that the trial court's decision in Mrs. Kaye's action contained such a finding Dr. Kaye requested Lloyd's to defend on his behalf as an assured under the policy, but it disclaimed any obligation to defend this action. He then interposed an answer to the complaint and served Lloyd's with a thirdparty summons and complaint. Lloyd's has brought on the present motion to dismiss that third-party complaint.

Dr. Kaye alleges therein the foregoing facts as to the policy, the accident (omitting...

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7 practice notes
  • Clifton Products, Inc. v. American Universal Ins. Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 20, 1959
    ...of that state. See Zacharakis v. Bunker Hill Mut. Ins. Co., 1st Dept., 281 App.Div. 487, 490, 120 N.Y.S. 2d 418; Peka, Inc. v. Kaye, 208 Misc. 1003, 1009-1010, 145 N.Y.S.2d 156, reversed on other grounds 1st Dept., 1 A.D.2d 879, 150 N.Y.S.2d 774; Kaye v. "Doe" (Lloyds of London), 204 Misc. ......
  • Aetna Cas. & Sur. Co. v. Delosh
    • United States
    • United States State Supreme Court (New York)
    • March 5, 1973
    ...Misc.2d 86, 133 N.Y.S.2d 639, aff'd 285 App.Div. 926, 139 N.Y.S.2d 884, appeal dismissed 309 N.Y. 750, 128 N.E.2d 797; Peka Inc. v. Kaye, 208 Misc. 1003, 145 N.Y.S.2d 156, reversed on other grounds, 1 A.D.2d 879, 150 N.Y.S.2d 774; cf. however, Jacobs v. United States Fidelity and Guaranty C......
  • State Farm Mut. Auto. Ins. Co. v. Westlake
    • United States
    • New York Supreme Court Appellate Division
    • January 14, 1974
    ...indemnification is asked by a husband who is sought to be held liable for injuries sustained by his wife (see Peka, Inc. v. Kaye, 208 Misc. 1003, 145 N.Y.S.2d 156, revd. on other grounds 1 A.D.2d 879, 150 N.Y.S.2d 774; Fuchs v. London & Lancashire Ind. Co. of Amer., 258 App.Div. 603, 17 N.Y......
  • Smith v. Employer's Fire Ins. Co.
    • United States
    • United States State Supreme Court (New York)
    • November 27, 1972
    ...affd. 285 App.Div. 926, 139 N.Y.S.2d 884; Katz v. Wessel, 207 Misc. 456, 139 N.Y.S.2d 564; Peka, Inc. v. Kaye, 208 Misc. Page 14 1003, 145 N.Y.S.2d 156; Reis v. Economy Hotels, 4 Misc.2d 146, 155 N.Y.S.2d 713; Barson v. General Accident Assurance Corporation, 41 Misc.2d 1033, 246 N.Y.S.2d 8......
  • Request a trial to view additional results
7 cases
  • Clifton Products, Inc. v. American Universal Ins. Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 20, 1959
    ...of that state. See Zacharakis v. Bunker Hill Mut. Ins. Co., 1st Dept., 281 App.Div. 487, 490, 120 N.Y.S. 2d 418; Peka, Inc. v. Kaye, 208 Misc. 1003, 1009-1010, 145 N.Y.S.2d 156, reversed on other grounds 1st Dept., 1 A.D.2d 879, 150 N.Y.S.2d 774; Kaye v. "Doe" (Lloyds of London), 204 Misc. ......
  • Aetna Cas. & Sur. Co. v. Delosh
    • United States
    • United States State Supreme Court (New York)
    • March 5, 1973
    ...Misc.2d 86, 133 N.Y.S.2d 639, aff'd 285 App.Div. 926, 139 N.Y.S.2d 884, appeal dismissed 309 N.Y. 750, 128 N.E.2d 797; Peka Inc. v. Kaye, 208 Misc. 1003, 145 N.Y.S.2d 156, reversed on other grounds, 1 A.D.2d 879, 150 N.Y.S.2d 774; cf. however, Jacobs v. United States Fidelity and Guaranty C......
  • State Farm Mut. Auto. Ins. Co. v. Westlake
    • United States
    • New York Supreme Court Appellate Division
    • January 14, 1974
    ...indemnification is asked by a husband who is sought to be held liable for injuries sustained by his wife (see Peka, Inc. v. Kaye, 208 Misc. 1003, 145 N.Y.S.2d 156, revd. on other grounds 1 A.D.2d 879, 150 N.Y.S.2d 774; Fuchs v. London & Lancashire Ind. Co. of Amer., 258 App.Div. 603, 17 N.Y......
  • Smith v. Employer's Fire Ins. Co.
    • United States
    • United States State Supreme Court (New York)
    • November 27, 1972
    ...affd. 285 App.Div. 926, 139 N.Y.S.2d 884; Katz v. Wessel, 207 Misc. 456, 139 N.Y.S.2d 564; Peka, Inc. v. Kaye, 208 Misc. Page 14 1003, 145 N.Y.S.2d 156; Reis v. Economy Hotels, 4 Misc.2d 146, 155 N.Y.S.2d 713; Barson v. General Accident Assurance Corporation, 41 Misc.2d 1033, 246 N.Y.S.2d 8......
  • Request a trial to view additional results

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