Beaver v. Erie & Niagara Insurance

12 A.D.3d 1088, 784 N.Y.S.2d 400, 2004 N.Y. App. Div. LEXIS 13842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2004
• Status: Published

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.), entered November 13, 2003. The judgment granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs cross motion for summary judgment in a declaratory judgment action.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the provision dismissing the complaint and granting judgment in favor of defendant as follows: It is adjudged and declared that defendant has no duty to defend plaintiff in the underlying action and as modified the judgment is affirmed without costs.

Memorandum: We agree with the reasoning of Supreme Court as set forth in its decision. The court erred, however, in granting judgment to defendant dismissing the complaint rather than declaring the rights of the parties (see Pless v Town of Royalton, 185 AD2d 659, 660 [1992], affd 81 NY2d 1047 [1993]). Thus, we modify the judgment by vacating the provision dismissing the complaint and granting judgment declaring that defendant has no duty to defend plaintiff in the underlying action. Present— Hurlbutt, J.P., Kehoe, Gorski, Martoche and Hayes, JJ.