Galietta v. Commercial Insurance , 1962 N.Y. App. Div. LEXIS 8656 ( 1962 )

In a derivative action pursuant to statute (Insurance Law, § 167, subd. 1, par. [b]), in which the plaintiffs, on the basis of an automobile liability policy issued by the defendant, seek judgment against said insurer for the amount of a judgment in their favor in a negligence action previously instituted by them against the persons insured, the parties cross-appeal from so much of an order of the Supreme Court, Orange County, dated May 2, 1061, as denied their respective motions for summary judgment (Rules Civ. Prae., rule 113). Defendant claims that it had cancelled the insurance policy by reason of the fraud of the named insured who had falsely represented that she was the owner of the automobile, whereas in fact the actual owner was the person who operated it at the time of the accident. Order, insofar as appealed from, affirmed, without costs. We agree with the Justice at Special Term that issues of fact are presented and that such issues must be resolved after a plenary trial. Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Hill, JJ., concur.