Eagle Insurance v. Punctual Express, Inc.

251 A.D.2d 536, 673 N.Y.S.2d 926, 1998 N.Y. App. Div. LEXIS 7538

Opinion

—In a declaratory judgment action, Nestor Bailly, an infant, by his father and natural guardian Nicholas Bailly, appeals from a judgment of the Supreme Court, Nassau County (McCaffrey, J.), dated June 26, 1997, which declared that the plaintiff is under no duty to defend or indemnify the defendants Punctual Express, Inc., and AA Punctual Airport Service, Inc., in an underlying negligence action entitled Bailly v Punctual Express, pending in the Supreme Court, New York County, under Index No. 101763/93.

Ordered that the judgment is affirmed, with costs.

Despite the alleged representations of the plaintiffs employee to the appellant, the plaintiff established that it did not issue a policy of insurance liability to Punctual Express, Inc., covering the vehicle or date in question. Thus, because a policy of insurance between the plaintiff and the alleged tortfeasor never existed, it cannot be created by equitable estoppel (see, Van Buren v Employers Ins., 98 AD2d 774, 775).

We decline to reach the appellant’s remaining contention, as it is raised for the first time on this appeal (see, Matter of Allstate Ins. Co. v Bieder, 212 AD2d 693; Miller Org. v Vasap Constr. Corp., 184 AD2d 763). Pizzuto, J. P., Santucci, Altman and Luciano, JJ., concur.