                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    517072
________________________________

NATIONWIDE INSURANCE COMPANY
   OF AMERICA,
                    Respondent,
      v

ANDREW R. PORTER,
                     Defendant,              MEMORANDUM AND ORDER
     and

RONALD B. PARKS et al.,
                    Appellants.
________________________________


Calendar Date:   September 9, 2014

Before:    Lahtinen, J.P., Rose, Egan Jr., Lynch and Clark, JJ.

                              __________


      Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Karen J.
Krogman of counsel), for Ronald B. Parks and another, appellants.

      Hiscock & Barclay, LLP, Elmira (Justin L. Salkin of
counsel), for Andrew J. Thompson and another, appellants.

      Law Offices of Epstein Gialleonardo & Rayhill, Latham
(Jeffrey T. Culkin of counsel), for respondent.

                              __________


Lahtinen, J.P.

      Appeal from an order and judgment of the Supreme Court
(Rumsey, J.), entered January 23, 2013 in Tompkins County, which,
among other things, granted plaintiff's motion for summary
judgment and declared that plaintiff had no duty to defend or
indemnify defendant Andrew R. Porter.
                              -2-                517072

      Defendant Andrew R. Porter's 1994 Chevrolet truck was
insured in 2008 by plaintiff. During the term of the policy,
Porter sold the truck to a junkyard and then traded his all
terrain vehicle (hereinafter ATV) to his employer, Cory Elmore,
for a 1987 Dodge Aries. Porter took possession of the Dodge
before receiving title and, despite Porter's requests, Elmore
delayed providing title. Porter placed the license plates from
his junked truck on the Dodge and used it for commuting to work.

      Shortly after taking possession of the Dodge and before
notifying plaintiff of any changes that occurred, Porter was in
an accident. While trying to pass a car owned by defendant
Edward J. Thompson and driven by defendant Andrew J. Thompson,
Porter collided with a car owned and operated by defendant Ronald
B. Parks in which defendant Marcia L. Parks was a passenger.
Thereafter, the Parks commenced a personal injury action against
Porter and the Thompsons.

      Plaintiff disclaimed coverage and brought this action
seeking a judgment declaring that it had no duty to defend or
indemnify Porter. Plaintiff moved for summary judgment seeking
such declaration and the Parks cross-moved for summary judgment
declaring that plaintiff had a duty to defend and indemnify
Porter. The Thompsons opposed plaintiff's motion. Supreme Court
granted plaintiff's motion. The Parks and the Thompsons appeal.

      The parties' rights and obligations are governed by the
specific language of the insurance contract, with clear
provisions given their plain meaning whereas ambiguities are
construed in favor of the insured (see Wangerin v New York Cent.
Mut. Fire Ins. Co., 111 AD3d 991, 992 [2013]; Pepper v Allstate
Ins. Co., 20 AD3d 633, 634-635 [2005]; State Farm Mut. Ins. Co. v
Glinbizzi, 9 AD3d 756, 757 [2004]). The policy issued by
plaintiff to Porter set forth coverage for some situations where
Porter used a motor vehicle other than the listed 1994 Chevrolet
truck. These situations included standard provisions involving a
temporary substitute vehicle, a newly acquired vehicle and a non-
owned vehicle not furnished for regular use (see generally State
Farm Mut. Auto. Ins. Co. v Bentley, 262 AD2d 739, 741 [1999]).
                              -3-                517072

      We consider first whether coverage extended to the 1987
Dodge under the provision for "[a] private passenger auto newly
acquired by you." Plaintiff contended, and Supreme Court held,
that this provision did not apply because Porter had not yet
received title or registered the Dodge under the Uniform Vehicle
Certificate of Title Act (see Vehicle and Traffic Law art 46).
The term "newly acquired" is not defined in the policy and,
importantly, it is not limited by the policy to completed
transactions that were done in full compliance with the
Certificate of Title Act. Ownership of a motor vehicle generally
passes "when the parties intend that it pass" (Dallura v Rubicco,
5 AD3d 346, 347 [2004] [internal quotation marks and citations
omitted]).

      Here, it is undisputed that, during the month before the
accident, Porter had disposed of his 1994 Chevrolet truck and,
shortly thereafter, replaced it by trading his ATV (which he had
recently purchased for $1,000) to Elmore for the 1987 Dodge.
Although Elmore apparently indicated to Porter after the accident
that the Dodge was actually owned by his girlfriend's father,
there was no indication that Elmore did not have authority from
the owner to make the transaction. At the time of the
transaction, Elmore took possession of the ATV and likewise
Porter took absolute possession and control of the Dodge,
including all of the keys. According to Porter, the trade was
final and permanent. Porter testified that Elmore was about to
produce documents so he could register the Dodge, but the
accident occurred the day before Elmore was going to give him the
documents. Nonetheless, upon taking physical possession of the
Dodge, Porter had placed the plates from his junked truck on the
Dodge and began using it to drive to work. Under the
circumstances and considering the pertinent policy language in
light of "the reasonable expectations of the average insured"
(Cragg v Allstate Indem. Corp., 17 NY3d 118, 122 [2011]), the
1987 Dodge fell within the meaning of replacement auto newly
acquired by Porter at the time of the accident and, accordingly,
was covered under plaintiff's policy.

      The remaining arguments regarding the applicability, if
any, of the temporary substitute vehicle and non-owned vehicle
provisions of the policy are academic.
                              -4-                  517072

     Rose, Egan Jr., Lynch and Clark, JJ., concur.



      ORDERED that the order and judgment is reversed, on the
law, with one bill of costs, plaintiff's motion denied, cross
motion by defendants Ronald B. Parks and Marcia L. Parks granted,
and it is declared that plaintiff has a duty to defend and
indemnify defendant Andrew R. Porter.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
