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

286
CA 16-01579
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


MICHELLE SWIATOWY TUTTLE, INDIVIDUALLY, AND AS
ASSIGNEE OF GEOFFREY TUTTLE, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
DEFENDANT-RESPONDENT.


PETER M. JASEN, P.C., BUFFALO (PETER M. JASEN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HAGELIN SPENCER LLC, BUFFALO (SEAN SPENCER OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Genesee County (Mark
Grisanti, A.J.), entered December 29, 2015. The order, inter alia,
granted the motion of defendant for summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendant’s motion and
reinstating the complaint, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking, inter alia,
a declaration that defendant is obligated to provide coverage under
the policy issued to her former boyfriend, who fell asleep while
operating a vehicle in which plaintiff was a passenger. The vehicle
was owned by plaintiff and insured under a policy issued by a nonparty
insurance company. Plaintiff’s boyfriend owned a separate vehicle,
which was insured under the policy issued by defendant. Plaintiff
commenced the underlying action to recover damages for injuries that
she sustained in the accident and obtained a judgment in the amount of
$332,187. The nonparty insurer paid plaintiff the policy limit of
$25,000, and plaintiff thereafter sought to recover the excess
judgment from defendant on the theory that her boyfriend was operating
a “non-owned car” under the policy issued by defendant. Initially,
defendant reserved its right to disclaim on the grounds that
plaintiff’s vehicle was not a “non-owned car” under the policy and
that defendant was not given notice of the accident within a
reasonable time. Thereafter, defendant issued a disclaimer only on
the ground that plaintiff’s vehicle was not a “non-owned car” under
the policy, and plaintiff commenced this action seeking, inter alia, a
declaration that the policy provided coverage.
                                 -2-                           286
                                                         CA 16-01579

     We agree with plaintiff that Supreme Court erred in granting
defendant’s motion for summary judgment dismissing the complaint on
the ground that defendant did not receive notice of the accident
within a reasonable time. It is undisputed that defendant did not
disclaim coverage on that ground, and defendant thus “is precluded
from relying upon that defense” (Henner v Everdry Mktg. & Mgt., Inc.,
74 AD3d 1776, 1777). Although we agree with defendant that plaintiff
failed to preserve her contention for our review by failing to raise
it in opposition to the motion, we conclude that “the issue . . . is
one of law appearing on the face of the record that [defendant] could
not have countered had it been raised in the court of first instance,
and thus the issue may be raised for the first time on appeal” (id. at
1777-1778 [internal quotation marks omitted]).

     We further agree with plaintiff that the court erred in granting
defendant’s motion for summary judgment on the additional ground that
plaintiff’s vehicle was not a “non-owned car” under the policy,
inasmuch as defendant failed to meet its burden of establishing its
entitlement to judgment as a matter of law (see Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853). The insurance policy defined a
“non-owned car” as “a car not . . . furnished or available for the
regular or frequent use of” the insured. “In determining whether a
vehicle was furnished or available for the regular use of the named
insured, ‘[f]actors to be considered . . . are the availability of the
vehicle and frequency of its use by the insured’ ” (Newman v New York
Cent. Mut. Fire Ins. Co., 8 AD3d 1059, 1060; see Konstantinou v
Phoenix Ins. Co., 74 AD3d 1850, 1851-1852, lv denied 15 NY3d 712).
“The applicability of the policy exclusion to a particular case must
be determined in light of the ‘purpose of [the] provision [of
coverage] for a nonowned vehicle not [furnished or available] for the
regular use of the insured[, which] is to provide protection to the
insured for the occasional or infrequent use of [a] vehicle not owned
by him or her[,] and [which coverage] is not intended as a substitute
for insurance on vehicles furnished for the insured’s regular use’ ”
(Newman, 8 AD3d at 1060).

     In support of its motion, defendant submitted the deposition
testimony of the boyfriend and plaintiff, both of whom testified that
the boyfriend had a set of keys to the vehicle but drove it only on
rare occasions. Furthermore, both of them testified that they had
separate vehicles insured under separate policies and that they did
not use those vehicles interchangeably. Thus, defendant failed to
establish as a matter of law that plaintiff’s vehicle was furnished or
available for her boyfriend’s regular use. We therefore conclude that
the court erred in granting defendant’s motion for summary judgment on
the issue whether plaintiff’s vehicle was a “non-owned car” under the
policy, because there are issues of fact with respect thereto, and we
modify the order accordingly. We likewise conclude that the court
properly denied plaintiff’s cross motion for summary judgment on that
issue (see generally Winegrad, 64 NY2d at 853).

Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
