Liberty Mutual Insurance v. Hartford Casualty Insurance

272 A.D.2d 299, 707 N.Y.S.2d 353, 2000 N.Y. App. Div. LEXIS 4814

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 2000
• Status: Published

Opinion

—In an action for a judgment declaring the parties’ obligations to defend and/or indemnify the defendant John Vaccarino in an underlying action to recover damages for personal injuries entitled Ewald v Vaccarino, pending in the Supreme Court, Nassau County, under Index No. 7770/96, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Burke, J.), entered February 9, 1999, as denied its motion for summary judgment declaring that the automobile liability insurance policy issued by the defendant provided the primary layer of insurance coverage and, upon searching the record, granted summary judgment to the defendant declaring, inter alia, that the automobile liability insurance policy issued by the plaintiff provided the primary layer of insurance coverage.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff, Liberty Mutual Insurance Company (hereinafter Liberty), issued a single automobile liability insurance policy which, pursuant to a “step down” provision, insured the owner of the vehicle for one amount and the lessee of the vehicle for a lesser amount. The defendant, Hartford Casualty Insurance Company (hereinafter Hartford), issued a separate automobile liability insurance policy to the lessee and driver of the temporarily-leased vehicle. The subject leased vehicle was in an accident, and Liberty and Hartford were unable to agree, inter alia, as to which insurance policy provided the primary layer of insurance coverage.

Contrary to Liberty’s contentions, the Supreme Court properly determined that the policy issued by Liberty provides the primary layer of insurance coverage, and the “step down” provision is ineffective to reduce the amount of coverage it must provide (see, Federal Ins. Co. v Ryder Truck Rental, 82 NY2d 909; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Alinkofsky v Country-Wide Ins. Co., 257 AD2d 70; Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 235 AD2d 523). Sullivan, J. P., Florio, Luciano and Feuerstein, JJ., concur.