Rivera v. Merchants Mut. Cas. Co.

• Citation: 27 Misc.2d 139,210 N.Y.S.2d 577
• Parties: Pauline RIVERA, an infant, by her guardinan ad litem Angelina Pesante, Plaintiff, v. MERCHANTS MUTUAL CASUALTY CO., Defendant.
• Decision Date: 30 March 1960
• Court: New York City Municipal Court

Page 577

210 N.Y.S.2d 577

27 Misc.2d 139

Pauline RIVERA, an infant, by her guardinan ad litem

Angelina Pesante, Plaintiff, v. MERCHANTS MUTUAL CASUALTY CO., Defendant.

Municipal Court of City of New York, Borough of Manhattan,

Second District.

March 30, 1960.

Louis Sirota, New York City, for plaintiff.

Robert Hill Nix, New York City, by Paul A. Crouch, New York City, for defendant.

JOHN C. LEONFORTE, Justice.

This action is brought by plaintiff under Section 167 of the Insurance Law to recover the sum of $537, the amount of a judgment which she previously obtained against the assured, Jennie Zukowski, as damages for personal injuries sustained by her because of the assured's negligence in the operation of a motor vehicle. The policy of automobile liability insurance executed by defendant in favor of assured was in effect at the time of the accident. In the earlier action the defendant disclaimed liability on the policy of insurance issued to its assured upon the ground that she failed to cooperate with defendant. The assured retained other counsel and after a trial the plaintiff herein recovered a judgment against the assured. The judgment having remained unsatisfied, plaintiff institutes this action against the defendant pursuant to the provisions of the Insurance Law.

In this action the defendant interposes an affirmative defense that the assured breached a condition of insurance in that she failed to cooperate in the defense of the action brought by plaintiff against her. The disclaimer of defendant is based principally upon the fact that the assured signed a statement in which she stated that the accident occurred when the infant plaintiff fell from the assured's automobile while it was in motion due to the opening of the right rear door. In this statement the assured stated that her husband had closed the door while she was seated behind the driver's wheel and that upon inspection of the right rear door of said automobile it was in good condition. In an examination before trial taken in the earlier action she testified that the spring of the right rear door had been broken for a period of about three or four months prior to the date of the accident and that she, not her husband, had closed the door before proceeding.

At the trial of the instant action the assured testified that the statement which she signed was prepared by an investigator employed by the defendant. She denied that she ever told the investigator the right rear door of her automobile was in good condition and stated that when her automobile was inspected by the investigator she called his attention to the defective spring on the door of her automobile. She also testified that she did not read the statement before she signed it since she had very little schooling.

It is the defendant's contention in this case that its disclaimer of liability was proper and that it was not obligated to defend the assured in the earlier action and that therefore no liability can be attached to it in the instant case. The plaintiff contends that the disclaimer was improper and that the defendant was obligated under the contract to defend the earlier action and to pay any judgment recovered therein.

In order to be relieved of liability, the defendant had the burden of establishing that there was a breach of the provisions of the policy which required a statement by the...