Torcivia v. United States Fidelity & Guaranty Co.

52 A.D.2d 944, 383 N.Y.S.2d 636, 1976 N.Y. App. Div. LEXIS 12809

Opinion

In actions for declaratory judgments to determine the liability of various insurance carriers with respect to claims arising out of an automobile accident, jointly tried before the court, without a jury, (1) defendant Allcity Insurance Company appeals from so much of a judgment of the Supreme Court, Suffolk County, entered October 6, 1975, as directs it to defend and indemnify its insured in Action No. 2 and (2) defendant United States Fidelity and Guaranty Company appeals from so much of the same judgment as directs it to defend and indemnify its insured in Action No. 1 and Action No. 2. (An appeal by plaintiffs Torcivia has apparently been abandoned.) Judgment affirmed, with one bill of costs jointly to respondents Torcivia, Ryan and Allstate Insurance Company, appearing separately and filing separate briefs, payable jointly by appellants Allcity and United States Fidelity, on the opinion of Mr. Justice Lipetz at Special Term. We observe that the issue of whether the driver of the automobile was operating it with the permission of its owner should have been determined in the main negligence actions rather than in the declaratory judgment actions (see Allstate Ins. Co. v Szego, 38 AD2d 736). However, as the respective plaintiffs initiated these actions, and did not object to the issue of permissive use when interposed, we shall not question the procedure adopted in this case (cf. Stevenson v News Syndicate Co., 302 NY 81, 87). Latham, Acting P. J., Margett, Damiani, Rabin and Hawkins, JJ., concur.