American Motorists Insurance v. North Country Motors, Ltd.

80 A.D.2d 937, 437 N.Y.S.2d 767, 1981 N.Y. App. Div. LEXIS 10836

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1981
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered September 20, 1979 in Sullivan County, upon a decison of the court at a Trial Term, without a jury. The proof upon trial of this declaratory judgment action conclusively demonstrated that the automobile bearing dealer license plates issued to defendant North Country Motors, Ltd., owned by defendant Savastano and/or defendant Vassino, which was involved in the accident on November 17, 1974 while driven by Vassino, was never owned, sold, or otherwise controlled by North Country Motors, Ltd. Neither Savastano nor the driver had any relationship with North Country Motors, Ltd., to whom plaintiff American Motorists Insurance Company had issued the garage insurance policy in question (cf. Switzer v Merchants Mut. Cas. Co., 2 NY2d 575). The contract of insurance by its terms specifically excludes coverage of the circumstances under which the accident occurred (see Phoenix Ins. Co. v Guthiel, 2 NY2d 584). While defendants North Country Motors, Ltd.; Savastano and Vassino may be liable, plaintiff is not estopped from proving that the risk was excluded from coverage under the policy issued (Rudes v Hartford Acc. & Ind. Co., 32 AD2d 575, mot for lv to app den 25 NY2d 739). This court may neither make nor vary the insurance contract to accomplish abstract justice by extending coverage beyond the fair intent and meaning expressed (Breed v Insurance Co. of North Amer., 46 NY2d 351, 355). Judgment affirmed, without costs. Main, J. P., Casey, Yesawich, Jr., Weiss and Herlihy, JJ., concur.