Jaeger v. Travelers Insurance

Appellate Division of the Supreme Court of New York

Jaeger v. Travelers Insurance

53 A.D.2d 637, 384 N.Y.S.2d 848, 1976 N.Y. App. Div. LEXIS 13353

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

DecidedJune 14, 1976

StatusPublished

This text of 53 A.D.2d 637 (Jaeger v. Travelers 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

Jaeger v. Travelers Insurance, 53 A.D.2d 637, 384 N.Y.S.2d 848, 1976 N.Y. App. Div. LEXIS 13353 (N.Y. Ct. App. 1976).

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Opinion

In an action inter alia for a declaratory judgment, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated October 8, 1975, which (1) denied their motion for summary judgment and (2) granted summary judgment to defendants dismissing the complaint on the ground that, under the circumstances of the case, an action for a declaratory judgment does not lie. Order reversed, on the law, with $50 costs and disbursements payable to plaintiffs by the Travelers Insurance Company, and plaintiffs’ motion for summary judgment granted to the extent that it is declared that the Travelers Insurance Company is liable for the payment of the reasonable value of the services of whichever attorneys plaintiffs select for their defense in the wrongful death actions; the complaint is otherwise dismissed, without prejudice. No findings of fact were presented for review. Since plaintiffs sought a declaratory judgment, the complaint should not have been dismissed to the extent indicated herein (cf. Lanza v Wagner, 11 NY2d 317, 334). Under the circumstances of this case, in which the owner denies that he gave plaintiff Leslie Jaeger permission to drive his automobile, a conflict of interest is present between the plaintiffs and the insurance company. Therefore the selection of the attorneys to represent the plaintiffs should be made by them rather than by the insurance company (see Prashker v United States Guar. Co., 1 NY2d 584; Rimar v Continental Cas. Co., 50 AD2d 169; Utica Mut. Ins. Co. v Cherry, 45 AD2d 350, affd 38 NY2d 735). We have not reached the question whether either of the defendant insurers would be obligated to satisfy any judgment or judgments which may be recovered against the plaintiffs. Such determination should be made after the facts are adduced at the trial of the wrongful death actions (see Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875). Cohalan, Acting P. J., Margett, Damiani, Rabin and Shapiro, JJ., concur.

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In an action inter alia for a declaratory judgment, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated October 8, 1975, which (1) denied their motion for summary judgment and (2) granted summary judgment to defendants dismissing the complaint on the ground that, under the circumstances of the case, an action for a declaratory judgment does not lie. Order reversed, on the law, with $50 costs and disbursements payable to plaintiffs by the Travelers Insurance Company, and plaintiffs’ motion for summary judgment granted to the extent that it is declared that the Travelers Insurance Company is liable for the payment of the reasonable value of the services of whichever attorneys plaintiffs select for their defense in the wrongful death actions; the complaint is otherwise dismissed, without prejudice. No findings of fact were presented for review. Since plaintiffs sought a declaratory judgment, the complaint should not have been dismissed to the extent indicated herein (cf. Lanza v Wagner, 11 NY2d 317, 334). Under the circumstances of this case, in which the owner denies that he gave plaintiff Leslie Jaeger permission to drive his automobile, a conflict of interest is present between the plaintiffs and the insurance company. Therefore the selection of the attorneys to represent the plaintiffs should be made by them rather than by the insurance company (see Prashker v United States Guar. Co., 1 NY2d 584; Rimar v Continental Cas. Co., 50 AD2d 169; Utica Mut. Ins. Co. v Cherry, 45 AD2d 350, affd 38 NY2d 735). We have not reached the question whether either of the defendant insurers would be obligated to satisfy any judgment or judgments which may be recovered against the plaintiffs. Such determination should be made after the facts are adduced at the trial of the wrongful death actions (see Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875). Cohalan, Acting P. J., Margett, Damiani, Rabin and Shapiro, JJ., concur.

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Bluebook (online)

53 A.D.2d 637, 384 N.Y.S.2d 848, 1976 N.Y. App. Div. LEXIS 13353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jaeger-v-travelers-insurance-nyappdiv-1976.

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