WALTER S. KOZDRANSKI CO., INC. v. Jamestown Mut. Ins. Co.

309 N.E.2d 873, 34 N.Y.2d 542, 354 N.Y.S.2d 104, 1974 N.Y. LEXIS 1784

Opinion

Memorandum. The order of the Appellate Division should be affirmed, without costs, on the appeals of Public Service Mutual and its insured Gross, and the two appeals taken by Jamestown Mutual dismissed, without costs. On the main appeals by Public Service Mutual and its insured, the terms “ lessee or borrower ” in Public Service’s policy included the leasing of the truck and driver to Kozdranski and it is not determinative of the coverage of the policy provision whether the lessor Gross was to some extent an independent contractor. Hence, this court reaches the same conclusion as did the Appellate Division. The two purported appeals taken by Jamestown from the order amending the opinion at the Appellate Division and from the subsequent order denying Jamestown’s motion to further amend the opinion must be dismissed because an appeal would lie only from the Appellate Division order of reversal and not from subsequent orders changing merely the content of the Appellate Division opinion (see Goldberg v. Orzac, 30 A D 2d 697, 698, affd. on the prevailing memorandum at the Appellate Division 23 N Y 2d 919; Matter of Caristo Constr. Co. v. Rubin, 15 A D 2d 561, affd. 10 N Y 2d 538; Quaglio v. Weiss, 21 A D 2d 884, to the effect that no appeal lies from opinions and decisions; see, generally, 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5701.04). That Jamestown may not have been aggrieved by the Appellate Division order of reversal does not affect the nonappealability of the orders relating only to the opinion.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur in memorandum.

On the appeals by defendants Public Service Mutual Insurance Co. and Gross Plumbing & Heating Co., Inc.: Order affirmed.

On the appeals by defendant Jamestown Mutual Insurance Co.: Appeals dismissed.