

American Country Ins. Co. v Jacob Hanukov Bus Servs. Corp. (2014 NY Slip Op 08386)





American Country Ins. Co. v Jacob Hanukov Bus Servs. Corp.


2014 NY Slip Op 08386


Decided on December 3, 2014


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on December 3, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.


2013-01968
 (Index No. 29338/08)

[*1]American Country Insurance Company, respondent,
vJacob Hanukov Bus Services Corporation, et al., defendants, Frieda Kalter, appellant.


Becker & Russo (Dillon Horowitz & Goldstein, LLP, New York, N.Y. [Michael M. Horowitz and Thomas Dillon], of counsel), for appellant.
Shearer & Dwyer LLP, Mineola, N.Y. (Douglas Shearer of counsel), for respondent.

DECISION & ORDER
In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant Jacob Hanukov Bus Services Corporation in an underlying personal injury action entitled Kalter v Jakob Hanukov Bus Service Corp.,  commenced in the Supreme Court, Kings County, under Index No. 2310/08, the defendant Frieda Kalter appeals from an order of the Supreme Court, Kings County (Martin, J.), dated October 5, 2012, which denied her motion for summary judgment and granted the plaintiff's cross motion for summary judgment declaring, in effect, that the plaintiff is not so obligated.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's cross motion for summary judgment, and substituting therefor a provision denying that cross motion; as so modified, the order is affirmed, without costs or disbursements.
While the Supreme Court properly denied the defendant Frieda Kalter's motion for summary judgment, the court should have denied the plaintiff's cross motion for summary judgment, since there are triable issues of fact as to whether the plaintiff's disclaimer of coverage was timely.
RIVERA, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


