Citation Numbers： 7 A.D.3d 581, 776 N.Y.S.2d 500, 2004 N.Y. App. Div. LEXIS 6931
Filed Date： 5/10/2004
Status： Precedential
Modified Date： 11/1/2024
In an action, inter alia, for a judgment declaring that the defendant Insurance Corporation of New York is obligated to defend the plaintiff in an underlying personal injury action entitled Parzych v 109-Suffolk Corp., pending in the Supreme Court, Kings County, under Index No. 22627/01, the defendant Insurance Corporation of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated January 16, 2003, as granted the plaintiffs motion for summary judgment declaring that it is obligated to defend the plaintiff in the underlying personal injury action and denied its cross motion for summary judgment, or, in the alternative, for change of venue.
Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant Insurance Corporation of New York is obligated to defend the plaintiff in the underlying personal injury action.
The Supreme Court properly determined that the defendant Insurance Corporation of New York (hereinafter Inscorp) was obligated to defend the plaintiff in the underlying personal injury action. The plaintiff satisfied its burden of establishing its entitlement to judgment as a matter of law. In opposition, Inscorp failed to raise a triable issue of fact to sustain either of its grounds for disclaiming coverage (see General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]).
Inscorp’s remaining contentions are without merit.
Since this is a declaratory judgment action, the Supreme Court should have directed the entry of a judgment declaring that Inscorp is obligated to defend the plaintiff in the underlying personal injury action entitled Parzych v 109-Suffolk Corp., pending in the Supreme Court, Kings County, under Index No. 22627/01 (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Altman, J.P., S. Miller, Luciano and Crane, JJ., concur.