Cozza v. Aetna Insurance

243 A.D.2d 441, 665 N.Y.S.2d 277, 1997 N.Y. App. Div. LEXIS 9304

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1997
• Status: Published

Opinion

In an action, inter alia, for a judgment declaring that the defendant Aetna Insurance Company must defend and indemnify Ross S. Greenberg with respect to an action entitled Cozza v County of Suffolk, pending in the Supreme Court, Suffolk County, the defendants Aetna Insurance Company and Richard Greenberg appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated July 21, 1994, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

There are issues of fact as to, inter alia, credibility, which preclude the granting of summary judgment (see, Doo Won Choi v B.H.N.V. Realty Corp., 240 AD2d 619; Petrone v Thor-ton, 166 AD2d 513; Mortimer v Lynch, 119 AD2d 558; cf, Matter of Aetna Cas. & Sur. Co. v Gutstein, 80 NY2d 773). Further, additional discovery with respect to matters solely within the control of the appellants is warranted (see, CPLR 3212 [f]; Classic Moments Co. v Akata, 176 AD2d 567). Accordingly, the order appealed from is affirmed. Miller, J. P., Ritter, Krausman and Goldstein, JJ., concur.