CNA Insurance v. Travelers Insurance

Appellate Division of the Supreme Court of New York

CNA Insurance v. Travelers Insurance

105 A.D.2d 680, 481 N.Y.S.2d 121, 1984 N.Y. App. Div. LEXIS 20794

Appellate Division of the Supreme Court of the State of New York·Decided November 5, 1984·Published

Opinion

In an action for a declaration that the defendant is required to assume the defense and liability of plaintiff’s insured in pending third-party actions, plaintiff appeals from a judgment of the Supreme Court, Kings County (Deeley, J.), entered May 9, 1984, which, after a hearing, dismissed the complaint.

Judgment modified, on the law, by adding a provision thereto stating that the defendant is not required to assume the defense and liability of plaintiff’s insured. As so modified, judgment affirmed, with costs to the defendant.

We have reviewed the record and agree with Special Term that the contract between Finley & Madison Associates and Di Stasio & Van Burén, Inc., did not create a joint venture. To the [681]*681contrary, the contract specifically stated that Finley & Madison Associates understood and agreed that it was a subcontractor. Plaintiff has failed to meet its burden of proving the existence of a joint venture (see Ramirez v Goldberg, 82 AD2d 850). Therefore, defendant was under no obligation to assume the defense and liability of Di Stasio & Van Burén, Inc., in the third-party actions. However, instead of dismissing the complaint Special Term should have declared the rights of the parties (see Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74, cert den 371 US 901).

We have reviewed plaintiff’s other contentions and find them to be without merit. Niehoff, J. P., Boyers, Lawrence and Eiber, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action for a declaration that the defendant is required to assume the defense and liability of plaintiff’s insured in pending third-party actions, plaintiff appeals from a judgment of the Supreme Court, Kings County (Deeley, J.), entered May 9, 1984, which, after a hearing, dismissed the complaint.

Judgment modified, on the law, by adding a provision thereto stating that the defendant is not required to assume the defense and liability of plaintiff’s insured. As so modified, judgment affirmed, with costs to the defendant.

We have reviewed the record and agree with Special Term that the contract between Finley & Madison Associates and Di Stasio & Van Burén, Inc., did not create a joint venture. To the [681]*681contrary, the contract specifically stated that Finley & Madison Associates understood and agreed that it was a subcontractor. Plaintiff has failed to meet its burden of proving the existence of a joint venture (see Ramirez v Goldberg, 82 AD2d 850). Therefore, defendant was under no obligation to assume the defense and liability of Di Stasio & Van Burén, Inc., in the third-party actions. However, instead of dismissing the complaint Special Term should have declared the rights of the parties (see Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74, cert den 371 US 901).

We have reviewed plaintiff’s other contentions and find them to be without merit. Niehoff, J. P., Boyers, Lawrence and Eiber, JJ., concur.

CNA Insurance v. Travelers Insurance, 105 A.D.2d 680, 481 N.Y.S.2d 121, 1984 N.Y. App. Div. LEXIS 20794 (N.Y. Ct. App. 1984).

Pincite

105 A.D.2d 680 (CNA Insurance v. Travelers Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related