T. R. Service Station, Inc. v. Maryland Casualty Co.

22 A.D.2d 817, 254 N.Y.S.2d 883, 1964 N.Y. App. Div. LEXIS 2726

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1964
• Status: Published

Opinion

In an action to declare the rights of the parties under a “ Garage Liability Policy ” of insurance issued by defendant to plaintiff, the operator of an automobile service station and parking lot, the defendant appeals from an order of the Supreme Court, Queens County, dated February 28, 1964, which granted plaintiff’s motion for summary judgment, struck out defendant’s answer and declared that under the terms of said policy the defendant is obligated: (a) to defend the plaintiff in a pending action against it to recover damages by reason of personal injuries inflicted by its watchdog; and (b) to pay any judgment, within the limits of said policy, which may be rendered against plaintiff in such action. Order reversed, without costs, and plaintiff’s motion for summary judgment denied. There is a question of fact whether, under the terms of the policy in suit, the maintenance of a watchdog on the insured premises is an operation necessary and incidental to the ownership, maintenance or use of the premises as an automobile service station and parking lot. That question should be resolved after trial. Ughetta, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur. [42 Misc 2d 536.]