        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

471
CA 10-01743
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


PROGRESSIVE NORTHEASTERN INSURANCE COMPANY,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FARMERS NEW CENTURY INSURANCE COMPANY,
DEFENDANT-RESPONDENT,
MEGAN R. LINDHURST, DEFENDANT-APPELLANT,
AND JAMES A. BLAZINA, DEFENDANT.


CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (ERIN L.
CODY OF COUNSEL), FOR DEFENDANT-RESPONDENT.

KAPLAN, HANSON, MCCARTHY, ADAMS, FINDER & FISHBEIN, WILLIAMSVILLE
(NICOLE B. PALMERTON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (John A. Michalek, J.), entered May 27, 2010. The
order and judgment, inter alia, granted the motion of defendant
Farmers New Century Insurance Company and the cross motion of
plaintiff for summary judgment.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking, inter alia,
a declaration that it is not required to provide coverage to any of
the defendants in connection with a one-vehicle collision. The
vehicle involved was owned by defendant Megan R. Lindhurst, who had
purchased an automobile insurance policy from defendant Farmers New
Century Insurance Company (Farmers). Defendant James A. Blazina, who
had purchased an automobile insurance policy from plaintiff, was a
passenger in that vehicle. Contrary to the contention of Lindhurst on
appeal, Supreme Court properly granted the respective motion of
Farmers and the cross motion of plaintiff for summary judgment and
declared, inter alia, that neither insurer was obligated to provide
coverage for the collision. “[A]n issue decided in a criminal
proceeding may be given preclusive effect in a subsequent civil
action” (D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659,
664). As a result of the one-car collision in question, Blazina was
convicted of, inter alia, criminal mischief in the fourth degree due
                                 -2-                           471
                                                         CA 10-01743

to his actions in turning the steering wheel of the vehicle driven by
Lindhurst when he had “no right to do so nor any reasonable ground to
believe that he . . . ha[d] such right” (Penal Law § 145.00). Thus,
the issues whether Blazina had a “reasonable belief” that he was
entitled to use the vehicle, as required in order to qualify as an
insured user under the Farmers policy, and whether he had “express or
implied permission” to use the vehicle, as required in order to
qualify for coverage under plaintiff’s policy, have been conclusively
resolved in the criminal proceeding with respect to both Lindhurst and
Blazina (see generally D’Arata, 76 NY2d at 665). Contrary to
Lindhurst’s contention that plaintiff did not “definitively” disclaim
coverage, we note that plaintiff was not required to provide “notice
[of disclaimer] when there never was any insurance in effect” (Zappone
v Home Ins. Co., 55 NY2d 131, 138). In any event, an insurer will not
be estopped from disclaiming coverage where, as here, it timely
“reserve[d] its right to claim that the policy does not cover the
situation at issue, while defending the action” (O’Dowd v American
Sur. Co. of N.Y., 3 NY2d 347, 355).




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
