Mattituck Park District v. Travelers Companies

244 A.D.2d 321, 665 N.Y.S.2d 538, 1997 N.Y. App. Div. LEXIS 11016

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1997
• Status: Published

Opinion

—In an action, inter alia, for a judgment declaring that the defendant must defend and indemnify the plaintiff in an underlying action, the defendant appeals from an order of the Supreme Court, Suffolk County (Hall, J.), dated October 25, 1996, which denied its motion for summary judgment declaring that it had no duty to defend or indemnify the plaintiff in the underlying action.

Ordered that the order is affirmed, with costs.

There is an issue of fact as to whether the boat tied to the plaintiffs dock was “in the care, custody or control” of the plaintiff at the time that it sank (County of Broome v Travelers Indem. Co., 88 AD2d 720, affd 58 NY2d 753; see, Dubay v Trans-America Ins. Co., 75 AD2d 312; Greater N. Y. Mut. Ins. Co. v Professional Sec. Bur., 61 AD2d 975). Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.