Government Employees Insurance v. Desiderio

104 A.D.2d 791, 480 N.Y.S.2d 132, 1984 N.Y. App. Div. LEXIS 20288

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1984
• Status: Published

Opinion

— In an action for a declaratory judgment, plaintiff appeals from an order of the Supreme Court, Kings County (Bonomo, J.), dated March 3, 1983, which denied its motion for summary judgment.

Order affirmed, with one bill of costs, without prejudice to renewal of the motion after completion of discovery proceedings instituted by Josephine Desiderio.

In our opinion the motion of plaintiff was properly denied in view of the need for Josephine Desiderio to conduct discovery proceedings to ascertain the pertinent facts concerning the issues of coverage and disclaimer, and because of the fact that, as recited in the affirmation in opposition submitted by Josephine Desiderio’s attorney, such proceedings had been instituted by her and were pending at the time plaintiff moved for summary judgment (see CPLR 3212, subd [f]). However, our affirmance is without prejudice to plaintiff’s renewal of the motion after completion of those discovery proceedings, and to plaintiff’s right to then reassert and establish that there is no policy covering Joseph Desiderio for the claims made by Catherine Fraggetta Catuogno in the latter’s personal injury negligence suit against her. Thompson, J. P., Weinstein, Rubin and Lawrence, JJ., concur.