Gibbs v. Country-Wide Insurance

265 A.D.2d 915, 695 N.Y.S.2d 637, 1999 N.Y. App. Div. LEXIS 10040

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1999
• Status: Published

Opinion

—Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Supreme Court properly concluded that plaintiff was bound by the power of attorney provision in the premium finance agreement and that the policy of insurance was properly canceled on April 26, 1994, pursuant to Banking Law § 576. The court erred, however, in dismissing the complaint rather than declaring the rights of the parties (see, Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954; Seven-son Hotel Assocs. v Stranges, 262 AD2d 957; Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047). Thus, we modify the judgment by reinstating the complaint and granting judgment in favor of defendants declaring that defendants have no duty to defend or indemnify plaintiff in a lawsuit arising out of an automobile accident that occurred on May 1, 1994. (Appeal from Judgment of Supreme Court, Onondaga County, Murphy, J. — Declaratory Judgment.) Present — Green, J. P., Hayes, Pigott, Jr., and Scudder, JJ.