New York Central Mutual Fire Insurance v. Smith

Appellate Division of the Supreme Court of New York

New York Central Mutual Fire Insurance v. Smith

16 A.D.3d 1028, 791 N.Y.S.2d 788, 2005 N.Y. App. Div. LEXIS 2865

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

DecidedMarch 18, 2005

StatusPublished

This text of 16 A.D.3d 1028 (New York Central Mutual Fire Insurance v. Smith) 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

New York Central Mutual Fire Insurance v. Smith, 16 A.D.3d 1028, 791 N.Y.S.2d 788, 2005 N.Y. App. Div. LEXIS 2865 (N.Y. Ct. App. 2005).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered March 19, 2004. The order denied the motion of defendants Tracey Boyette and Kameron Wilson and the cross motion of defendant William F. Smith seeking dismissal of the complaint pursuant to CPLR 3211 in a declaratory judgment action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion and cross motion are granted and the complaint is dismissed.

Memorandum: Defendant Tracey Boyette and her son, defendant Kameron Wilson, resided in premises owned by defendant William F. Smith and insured under a homeowner’s policy issued by plaintiff. Wilson was receiving, treatment for lead poisoning when his family moved into the Smith premises, and a health department investigation thereafter identified a number of lead-based paint conditions that were abated when he resided there. Plaintiff commenced this action seeking a declaration that it has no duty to defend or indemnify Smith with respect to any losses arising from claims made by Boyette and Wilson against him. Boyette and Wilson appeal from an order denying their motion seeking dismissal of the complaint against them. “Because no personal injury action has been commenced to recover damages against [Smith], the declaratory judgment action is premature” (Terry v Farmer’s Ins. Co. of Ariz., 236 AD2d 829, 829 [1997]; see Allstate Ins. Co. v Hertz Corp., 119 AD2d 612, 613 [1986]; Soto v Motor Veh. Acc. Indem. Corp., 23 AD2d 728 [1965]). Thus Supreme Court erred in denying the motion. The court also erred in denying the cross motion of Smith seeking dismissal of the complaint against him, and we grant the cross motion notwithstanding Smith’s failure to appeal from the order (see Hecht v City of New York, 60 NY2d 57, 62 [1983]). Present—Green, J.P., Scudder, Martoche, Smith and Lawton, JJ.

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Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered March 19, 2004. The order denied the motion of defendants Tracey Boyette and Kameron Wilson and the cross motion of defendant William F. Smith seeking dismissal of the complaint pursuant to CPLR 3211 in a declaratory judgment action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion and cross motion are granted and the complaint is dismissed.

Memorandum: Defendant Tracey Boyette and her son, defendant Kameron Wilson, resided in premises owned by defendant William F. Smith and insured under a homeowner’s policy issued by plaintiff. Wilson was receiving, treatment for lead poisoning when his family moved into the Smith premises, and a health department investigation thereafter identified a number of lead-based paint conditions that were abated when he resided there. Plaintiff commenced this action seeking a declaration that it has no duty to defend or indemnify Smith with respect to any losses arising from claims made by Boyette and Wilson against him. Boyette and Wilson appeal from an order denying their motion seeking dismissal of the complaint against them. “Because no personal injury action has been commenced to recover damages against [Smith], the declaratory judgment action is premature” (Terry v Farmer’s Ins. Co. of Ariz., 236 AD2d 829, 829 [1997]; see Allstate Ins. Co. v Hertz Corp., 119 AD2d 612, 613 [1986]; Soto v Motor Veh. Acc. Indem. Corp., 23 AD2d 728 [1965]). Thus Supreme Court erred in denying the motion. The court also erred in denying the cross motion of Smith seeking dismissal of the complaint against him, and we grant the cross motion notwithstanding Smith’s failure to appeal from the order (see Hecht v City of New York, 60 NY2d 57, 62 [1983]). Present—Green, J.P., Scudder, Martoche, Smith and Lawton, JJ.

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Bluebook (online)

16 A.D.3d 1028, 791 N.Y.S.2d 788, 2005 N.Y. App. Div. LEXIS 2865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-central-mutual-fire-insurance-v-smith-nyappdiv-2005.

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