Penske Truck Leasing Co. v. Eagle Insurance , 687 N.Y.S.2d 288 ( 1999 )

—In an action, inter alia, for a judgment declaring that the defendant must defend and indemnify the plaintiff in an underlying action entitled Latona v Ruvolo, pending in the Supreme Court, Kings County, under Index No. 18315/92, the plaintiff appeals from an order of the Supreme Court, Nassau County (Driscoll, J.), dated January 21, 1998, which, inter alia, granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the underlying action.

The defendant’s insurance policy and endorsements cannot be read to include the vehicle involved in the accident which gave rise to the underlying personal injury action (see, County of Columbia v Continental Ins. Co., 83 NY2d 618). Therefore, the Supreme Court properly granted the defendant’s motion for summary judgment. However, the matter must be remitted to the Supreme Court, Nassau County, for a declaration in favor of the defendant (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). S. Miller, J. P., O’Brien, Ritter and Santucci, JJ., concur.