Ess v. State Farm Mutual Automobile Insurance

Appellate Division of the Supreme Court of New York

Ess v. State Farm Mutual Automobile Insurance

191 A.D.2d 959, 594 N.Y.S.2d 500, 1993 N.Y. App. Div. LEXIS 2903

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 12, 1993

StatusPublished

Cited by1 cases

This text of 191 A.D.2d 959 (Ess v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ess v. State Farm Mutual Automobile Insurance, 191 A.D.2d 959, 594 N.Y.S.2d 500, 1993 N.Y. App. Div. LEXIS 2903 (N.Y. Ct. App. 1993).

Pincite

Opinion

—Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiffs motion for summary judgment declaring that defendant is obligated to defend and indemnify plaintiff in an underlying personal injury action. That action arose out of a 1984 automobile accident that occurred near Anchorage, Alaska, while plaintiff was in Alaska for a youth hockey tournament. At the time of the accident, plaintiff was operating an automobile provided by the tournament hosts and rented from National Car Rental. The insurance policy covering the automobile was issued by a company that went into liquidation after the accident. Both the Alaska Insurance Guaranty Association and the Liquidation Bureau of the New York State Insurance Department have refused to defend or indemnify plaintiff. At the time of the accident, plaintiff was insured by defendant under an automobile policy that provided liability coverage to her.

In opposing plaintiffs motion for summary judgment, defendant submitted only an attorney’s affidavit, consisting of little more than speculation that factual issues may exist precluding summary judgment. Such statements of possible defenses do not constitute proof in admissible form and are inadequate to establish the existence of a factual issue requiring trial (see, Waterman v Yamaha Motor Corp., 184 AD2d 1029; see also, Vermette v Kenworth Truck Co., 68 NY2d 714, 717; Zuckerman v City of New York, 49 NY2d 557, 560, 563). In addition, defense counsel’s speculation that further disclosure might reveal coverage by another insurer is insufficient to defeat plaintiff’s motion (see, Waterman v Yamaha Motor Corp., supra), particularly in light of the considerable period of time that has elapsed since the accident. (Appeal from Judgment of Supreme Court, Erie County, Flaherty, J. — Declaratory Judg[960]*960ment.) Present — Denman, P. J., Green, Balio, Doerr and Boehm, JJ.

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

—Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiffs motion for summary judgment declaring that defendant is obligated to defend and indemnify plaintiff in an underlying personal injury action. That action arose out of a 1984 automobile accident that occurred near Anchorage, Alaska, while plaintiff was in Alaska for a youth hockey tournament. At the time of the accident, plaintiff was operating an automobile provided by the tournament hosts and rented from National Car Rental. The insurance policy covering the automobile was issued by a company that went into liquidation after the accident. Both the Alaska Insurance Guaranty Association and the Liquidation Bureau of the New York State Insurance Department have refused to defend or indemnify plaintiff. At the time of the accident, plaintiff was insured by defendant under an automobile policy that provided liability coverage to her.

In opposing plaintiffs motion for summary judgment, defendant submitted only an attorney’s affidavit, consisting of little more than speculation that factual issues may exist precluding summary judgment. Such statements of possible defenses do not constitute proof in admissible form and are inadequate to establish the existence of a factual issue requiring trial (see, Waterman v Yamaha Motor Corp., 184 AD2d 1029; see also, Vermette v Kenworth Truck Co., 68 NY2d 714, 717; Zuckerman v City of New York, 49 NY2d 557, 560, 563). In addition, defense counsel’s speculation that further disclosure might reveal coverage by another insurer is insufficient to defeat plaintiff’s motion (see, Waterman v Yamaha Motor Corp., supra), particularly in light of the considerable period of time that has elapsed since the accident. (Appeal from Judgment of Supreme Court, Erie County, Flaherty, J. — Declaratory Judg[960]*960ment.) Present — Denman, P. J., Green, Balio, Doerr and Boehm, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

191 A.D.2d 959, 594 N.Y.S.2d 500, 1993 N.Y. App. Div. LEXIS 2903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ess-v-state-farm-mutual-automobile-insurance-nyappdiv-1993.

Opinion

Related

Cite This Page — Counsel Stack