Hamilton v. City of New York

Appellate Division of the Supreme Court of New York

Hamilton v. City of New York

172 A.D.2d 585, 570 N.Y.S.2d 942, 1991 N.Y. App. Div. LEXIS 4635

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

DecidedApril 8, 1991

StatusPublished

This text of 172 A.D.2d 585 (Hamilton v. City of New York) 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

Hamilton v. City of New York, 172 A.D.2d 585, 570 N.Y.S.2d 942, 1991 N.Y. App. Div. LEXIS 4635 (N.Y. Ct. App. 1991).

Pincite

Opinion

In a negligence action to recover damages for personal injuries, etc., the third-party defendant appeals from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated June 29, 1989, as denied its motion for partial summary judgment dismissing that part of the complaint which would hold it liable for anything covered by the insurance policy in issue, and the defendants third-party plaintiffs cross-appeal from so much of the same order as denied that branch of their motion which was to dismiss the third-party defendant’s first affirmative defense.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The general liability policy at issue was procured by the defendants third-party plaintiffs from Employers Insurance of Wausau. The third-party defendant was named as an additional insured under that policy.

In its first affirmative defense to the third-party action, the third-party defendant asserted that the third-party action was, in part, a subrogation suit brought against it by its own insurance carriers. The defendants third-party plaintiffs met their burden of demonstrating the existence of triable issues of fact by citing the employee exclusion provision of the policy. The third-party defendant countered with a claim of waiver and/or estoppel. Significantly, at no time prior to the time the underlying motions were made did any party seek a declaration of coverage. It cannot be determined, at this juncture, whether the third-party action is one brought by an insurer improperly pursuing subrogation against its own insured (cf. Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465).

We further find that the determination as to whether the third-party defendant’s first affirmative defense should be dismissed must await a judgment in the main action and the payment of the plaintiffs’ award, if any. Bracken, J. P., Kunzeman, Sullivan and Rosenblatt, JJ., concur.

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

In a negligence action to recover damages for personal injuries, etc., the third-party defendant appeals from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated June 29, 1989, as denied its motion for partial summary judgment dismissing that part of the complaint which would hold it liable for anything covered by the insurance policy in issue, and the defendants third-party plaintiffs cross-appeal from so much of the same order as denied that branch of their motion which was to dismiss the third-party defendant’s first affirmative defense.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The general liability policy at issue was procured by the defendants third-party plaintiffs from Employers Insurance of Wausau. The third-party defendant was named as an additional insured under that policy.

In its first affirmative defense to the third-party action, the third-party defendant asserted that the third-party action was, in part, a subrogation suit brought against it by its own insurance carriers. The defendants third-party plaintiffs met their burden of demonstrating the existence of triable issues of fact by citing the employee exclusion provision of the policy. The third-party defendant countered with a claim of waiver and/or estoppel. Significantly, at no time prior to the time the underlying motions were made did any party seek a declaration of coverage. It cannot be determined, at this juncture, whether the third-party action is one brought by an insurer improperly pursuing subrogation against its own insured (cf. Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465).

We further find that the determination as to whether the third-party defendant’s first affirmative defense should be dismissed must await a judgment in the main action and the payment of the plaintiffs’ award, if any. Bracken, J. P., Kunzeman, Sullivan and Rosenblatt, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

172 A.D.2d 585, 570 N.Y.S.2d 942, 1991 N.Y. App. Div. LEXIS 4635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamilton-v-city-of-new-york-nyappdiv-1991.

Opinion

Related

Cite This Page — Counsel Stack