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

35
CA 12-00807
PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ.


ANTHONY PRAVE, III, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
ALSO KNOWN AS NEW YORK CENTRAL MUTUAL,
DEFENDANT-RESPONDENT.


MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BOEGGEMAN, GEORGE & CORDE, P.C., ALBANY (PAUL A. HURLEY OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Cayuga County (Mark H.
Fandrich, A.J.), entered September 14, 2011. The order, among other
things, denied in part the motion of plaintiff for summary judgment,
and granted the cross motion of defendant for consolidation.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the cross motion and
granting the motion in its entirety and as modified the order is
affirmed without costs, and the matter is remitted to Supreme Court,
Cayuga County, for entry of a judgment in favor of plaintiff in
accordance with the following Memorandum: This appeal arises from an
incident in which plaintiff was injured after nonparty James Henderson
struck him while opening the driver’s side door of a vehicle covered
under a liability policy issued by defendant, New York Central Mutual
Fire Insurance Company, also known as New York Central Mutual (NYCM).
Plaintiff commenced a personal injury action against, inter alia,
Henderson (underlying action). NYCM disclaimed coverage and refused
to defend or indemnify Henderson in the underlying action on the
ground that the incident was the result of an intentional act by
Henderson that was not covered under the policy. Henderson therefore
commenced an action against NYCM in Supreme Court, Oneida County
(declaratory judgment action), seeking, inter alia, a declaration that
NYCM had a duty to defend and indemnify him in the underlying action.
In a prior appeal in the declaratory judgment action (prior appeal),
this Court concluded that NYCM was required to defend Henderson and
that the issue of indemnification would depend upon the outcome of the
trial in the underlying action, i.e., whether Henderson was found to
be negligent (Henderson v New York Cent. Mut. Fire Ins. Co., 56 AD3d
1141, 1143). After the trial in the underlying action, it was
determined that Henderson was negligent in causing plaintiff’s
                                 -2-                            35
                                                         CA 12-00807

injuries, and a judgment was granted in favor of plaintiff in the
amount of $70,000.

     Plaintiff then commenced this Insurance Law § 3420 (b) action in
Supreme Court, Cayuga County, against NYCM seeking to enforce the
judgment in the underlying action. Thereafter, plaintiff moved for,
inter alia, summary judgment on the complaint, and NYCM cross-moved to
consolidate this matter with the declaratory judgment action. The
court granted plaintiff’s motion in part by dismissing NYCM’s first,
second, fourth and sixth affirmative defenses and otherwise denied the
motion. The court also granted NYCM’s cross motion and ordered that
this matter be transferred to Supreme Court, Oneida County, for
consolidation with the declaratory judgment action.

     We agree with plaintiff that the court erred in failing to grant
his motion for summary judgment in its entirety and in granting NYCM’s
cross motion and thereby transferring this matter. We therefore
modify the order accordingly, and we remit the matter to Supreme
Court, Cayuga County, for entry of a money judgment in favor of
plaintiff. It is well settled that “Insurance Law § 3420 . . . grants
an injured party a right to sue the tortfeasor’s insurer . . . under
limited circumstances—the injured party must first obtain a judgment
against the tortfeasor, serve the insurance company with a copy of the
judgment and await payment for 30 days . . . ‘[T]he effect of the
statute is to give to the injured claimant a cause of action against
an insurer for the same relief that would be due to a solvent
principal seeking indemnity and reimbursement’ ” (Lang v Hanover Ins.
Co., 3 NY3d 350, 354-355). Here, NYCM does not contend that plaintiff
failed to meet those statutory requirements, and plaintiff properly
commenced this action against NYCM. Moreover, as plaintiff correctly
contends, the determinations in the underlying action and in the prior
appeal establish that NYCM is required to indemnify Henderson and
that, as a result, plaintiff has a right to seek indemnification from
NYCM pursuant to section 3420. In the prior appeal, we concluded that
“[t]he court . . . erred in declaring that NYCM has no duty to
indemnify [Henderson]. As noted, the complaint in the underlying
action alleges negligent conduct on the part of . . . Henderson and,
if he accidentally or negligently caused [plaintiff’s] injuries while
opening the driver’s door, that event may be considered an ‘automobile
accident’ within the meaning of the policy . . . and we thus conclude
that the court erred in determining as a matter of law that NYCM had
no such duty. Rather, ‘that determination will abide the trial’ in
the underlying action” (Henderson, 56 AD3d at 1143, quoting Automobile
Ins. Co. of Hartford v Cook, 7 NY3d 131, 138). Henderson was found to
be negligent in the underlying action and, based upon our
determination in the prior appeal, NYCM was therefore required to
indemnify him. Here, plaintiff submitted evidence in support of his
motion establishing as a matter of law that the judgment in the
underlying action included a finding that Henderson was negligent, and
NYCM failed to raise a triable issue of fact.
                            -3-                   35
                                           CA 12-00807




Entered:   March 15, 2013         Frances E. Cafarell
                                  Clerk of the Court
