Citation Numbers: 85 A.D.2d 145, 447 N.Y.S.2d 444, 1982 N.Y. App. Div. LEXIS 17081
Judges: Asch
Filed Date: 2/25/1982
Status: Precedential
Modified Date: 10/19/2024
OPINION OF THE COURT
The action herein was commenced by Hartford Accident & Indemnity Company (Hartford) for declaratory judgment that National Union Fire Insurance Co. of Pittsburgh, Pa. (National), is the primary carrier and Hartford the excess carrier.
Hartford moved for summary judgment and A.A.A. then cross-moved for similar relief. Michellen cross-moved to dismiss the third-party complaint against it pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action.
The extensive record submitted upon the motion and cross motions contains copies of the policies of insurance which are appended to the affidavits of the parties. Hartford’s policy with A.A.A. contains an indorsement which reads in pertinent part: “This insurance shall be excess over any other valid and collectible insurance for bodily injury liability, for property damage liability and for autompbile medical payments whether primary, excess or contingent”.
National’s policy with Ryder, on the other hand, under the heading “Persons Insured” states in pertinent part: “(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission”.
There is no dispute that A.A.A. was using the vehicle with the permission of Ryder.
National’s claim that the acts of A.A.A. and Hartford estop Hartford from denying coverage is unsupported by evidentiary facts. The instances cited by Natiorjal of prior accidents in which the insurer or A.A.A. paid for any damage incurred all predated the time when Hartford first afforded coverage to A.A.A. “[0]nly the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment” (Rotuba Extruders v Ceppos, 46 NY2d 223, 231).
Michellen’s cross motion to dismiss the third-party complaint for failure to state a cause of action should have been granted. The complaint in the main action asserts no claim against Ryder, the third-party plaintiff, and the cross claims all relate to duties under the insurance policies. Therefore, Ryder has not pleaded any valid cause of action against Michellen.
Accordingly, the order of the Supreme Court, New York County (Tyler, J.), entered September 19, 1981, which, inter alia, denied plaintiff-appellant’s motion for summary judgment in this action for declaratory judgment and also denied third-party defendant-respondent’s cross motion to dismiss the third-party complaint, should be modified, on the law, to the extent of granting summary judgment to plaintiff-appellant, Hartford, declaring that defendant-respondent National is the primary carrier and plaintiff-appellant Hartford is the excess carrier; dismissing the third-party complaint against third-party defendant-cross-appellant, Michellen, for failure to state a cause of action, with costs to plaintiff-appellant Hartford payable by defendant-respondent National and costs to cross-appellant Michellen payable by third-party plaintiff-respondent Ryder; and otherwise affirmed.
Kupferman, J. P., Sullivan and Fein, JJ., concur.
Order, Supreme Court, New York County, entered on September 19, 1981, unanimously modified, on the law, to