Leo v. New York Central Mutual Fire Insurance

136 A.D.3d 1333, 24 N.Y.S.3d 567

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 2016
• Status: Published

Opinions

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Oneida County (Bernadette T. Clark, J.), entered November 4, 2014 in a declaratory judgment action. The judgment granted the motion of defendant for summary judgment, dismissed the complaint and denied the cross motion of plaintiff for partial summary judgment.

It is hereby ordered that the judgment so appealed from is modified on the law by reinstating the complaint to the extent that it seeks a declaration and granting judgment in favor of defendant as follows:

It is adjudged and declared that plaintiff is not entitled to indemnification from defendant with respect to the underlying action, and as modified the judgment is affirmed without costs.

Memorandum: We conclude, for reasons stated in the decision at Supreme Court, that the court properly granted defendant’s motion for summary judgment and properly denied plaintiff’s cross motion for partial summary judgment. The court erred, however, in dismissing the complaint and in failing to declare the rights of the parties in this declaratory judgment action (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]; Ward v County of Allegany, 34 AD3d 1288, 1289 [2006]). We therefore modify the judgment accordingly.

All concur except Whalen, J., who dissents and votes to modify in accordance with the following memorandum.