Allstate Insurance v. Pequero

64 A.D.2d 659, 407 N.Y.S.2d 244, 1978 N.Y. App. Div. LEXIS 12480

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 24, 1978
• Status: Published

Opinion

In an action for a declaratory judgment, the plaintiff appeals from an order and counterjudgment (one paper) of the Supreme Court, Kings County, entered February 4, 1977, which, inter alia, declared that the policy of "public liability insurance” issued by the plaintiff to the defendants Fernando Pequero and Ramon Brea doing business as American Empire Service Station obligated it both to defend and indemnify said defendants in the pending plenary actions in the Supreme Court, Kings County, and in the Supreme Court, Queens County (now consolidated in Queens County), pertaining to an accident involving an automobile owned by Esperanca Brea. Order and counterjudgment modified, on the law, by deleting from the first decretal paragraph thereof the provision requiring the plaintiff to indemnify defendants Ramon Brea and Fernando Pequero doing business as American Empire Service Station. As so modified, order and counterjudgment affirmed, without costs or disbursements. The language of the plaintiff’s policy insuring the defendants Fernando Pequero and Ramon Brea doing business as American Empire Service Station is sufficiently ambiguous to call upon it to defend the claim based upon an accident involving an automobile owned by Esperanca Brea, the spouse of Ramon Brea, one of the insureds covered under the policy, since she is a member of the same household as her husband, a partner in the named insured. Whether the plaintiff will ultimately be liable for payment under its policy will depend on the facts adduced at the trial of the negligence suits and a determination thereof should be deferred until that time. Gulotta, J. P., Shapiro, Cohalan and O’Connor, JJ., concur.