Allcity Insurance v. Manhattan & Bronx Surface Transit Operating Authority

Appellate Division of the Supreme Court of New York

Allcity Insurance v. Manhattan & Bronx Surface Transit Operating Authority

23 A.D.3d 208, 804 N.Y.S.2d 62

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 10, 2005

StatusPublished

This text of 23 A.D.3d 208 (Allcity Insurance v. Manhattan & Bronx Surface Transit Operating Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Allcity Insurance v. Manhattan & Bronx Surface Transit Operating Authority, 23 A.D.3d 208, 804 N.Y.S.2d 62 (N.Y. Ct. App. 2005).

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Judgment (denominated an order), Supreme Court, Bronx County (Dianne T. Renwick, J.), entered January 6, 2005, which denied plaintiffs motion for summary judgment and granted defendant-respondent’s cross motion for summary judgment dismissing the amended complaint and awarding defendant-respondent judgment on its counterclaim, unanimously modified, on the law, to declare in defendant-respondent’s favor that it had no duty to defend or indemnify the New York City Transit Authority, and otherwise affirmed, with costs in favor of defendant-respondent payable by plaintiff.

Defendant-respondent did not provide coverage to the Transit Authority, the certificate of insurance notwithstanding (see Insurance Corp. of N.Y. v U.S. Underwriters Ins. Co., 11 AD3d 235 [2004]), and its denial of control over or involvement in the third-party action commenced by the Transit Authority against its insured was unrebutted. Thus, there was no possibility it would be subrogated to its own insured (cf. National Union Fire Ins. Co. of Pittsburgh, Pa. v State Ins. Fund, 213 AD2d 164, 166 [1995] ; National Cas. Co. v State Ins. Fund, 227 AD2d 115, 117 [1996] , lv denied 88 NY2d 813 [1996]).

We modify solely to declare in defendant-respondent’s favor (see Lanza v Wagner, 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]). Concur—Buckley, P.J., Tom, Andrias, Sullivan and Malone, JJ.

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Judgment (denominated an order), Supreme Court, Bronx County (Dianne T. Renwick, J.), entered January 6, 2005, which denied plaintiffs motion for summary judgment and granted defendant-respondent’s cross motion for summary judgment dismissing the amended complaint and awarding defendant-respondent judgment on its counterclaim, unanimously modified, on the law, to declare in defendant-respondent’s favor that it had no duty to defend or indemnify the New York City Transit Authority, and otherwise affirmed, with costs in favor of defendant-respondent payable by plaintiff.

Defendant-respondent did not provide coverage to the Transit Authority, the certificate of insurance notwithstanding (see Insurance Corp. of N.Y. v U.S. Underwriters Ins. Co., 11 AD3d 235 [2004]), and its denial of control over or involvement in the third-party action commenced by the Transit Authority against its insured was unrebutted. Thus, there was no possibility it would be subrogated to its own insured (cf. National Union Fire Ins. Co. of Pittsburgh, Pa. v State Ins. Fund, 213 AD2d 164, 166 [1995] ; National Cas. Co. v State Ins. Fund, 227 AD2d 115, 117 [1996] , lv denied 88 NY2d 813 [1996]).

We modify solely to declare in defendant-respondent’s favor (see Lanza v Wagner, 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]). Concur—Buckley, P.J., Tom, Andrias, Sullivan and Malone, JJ.

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23 A.D.3d 208, 804 N.Y.S.2d 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allcity-insurance-v-manhattan-bronx-surface-transit-operating-authority-nyappdiv-2005.

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