| Lancer Ins. Co. v Whitfield |
| 2009 NY Slip Op 02975 [61 AD3d 724] |
| April 14, 2009 |
| Appellate Division, Second Department |
| Lancer Insurance Company, Appellant, v Omar Whitfield,Doing Business as Whitfield Auto Center, et al., Defendants, and Kevin Johnson et al.,Respondents. |
—[*1] Shaevitz & Shaevitz, Jamaica, N.Y. (Jonathan R. Vitarelli of counsel), forrespondents.
In an action for a judgment declaring that the plaintiff is not obligated to defend andindemnify the defendants Omar Whitfield, doing business as Whitfield Auto Center, and CharlesWhitfield in an underlying action entitled Johnson v Whitfield Auto, pending in theSupreme Court, Queens County, under index No. 11628/06, the plaintiff appeals from an orderof the Supreme Court, Nassau County (Feinman, J.), dated June 26, 2008, which denied itsmotion for summary judgment on the complaint.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and thematter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaringthat the plaintiff is not obligated to defend or indemnify the defendants Omar Whitfield, doingbusiness as Whitfield Auto Center, and Charles Whitfield in the underlying action entitledJohnson v Whitfield Auto, pending in the Supreme Court, Queens County, under indexNo. 11628/06.
The plaintiff insurer issued a garage dealer's policy of insurance (hereinafter the subjectpolicy) to the defendant Omar Whitfield, doing business as Whitfield Auto Center, an autodealership. On May 31, 2004, at approximately 1:00 a.m., an automobile owned by the autodealership was involved in an accident. At the time of the accident, the subject vehicle was beingdriven by the [*2]defendant Charles Whitfield (hereinafter thedriver), Omar Whitfield's father. The defendants Kevin Johnson and Reginald Smalls(hereinafter the respondents) commenced an underlying personal injury action against, amongothers, the auto dealership and the driver (hereinafter collectively the Whitfield defendants) forpersonal injuries they allegedly sustained in the accident. The plaintiff commenced this actionseeking a judgment declaring that it was not obligated to defend or indemnify the Whitfielddefendants in the underlying personal injury action because the accident did not fall within thecoverage provisions of the subject policy as the driver's use of the subject vehicle at the time ofthe accident was unrelated to "garage operations" as required by the policy.
The Whitfield defendants did not interpose an answer in the instant action, and by order ofthe Supreme Court, Nassau County (Feinman, J.), dated November 5, 2007, the court grantedthat branch of a prior motion of the plaintiff which was pursuant to CPLR 3215 for a defaultjudgment against them. By defaulting, the Whitfield defendants admitted the allegations in theinstant complaint and all reasonable inferences therefrom, to wit, that the driver had borrowedthe subject vehicle "to visit friends in North Babylon, and was on his way home when theaccident occurred" and that at the time of the accident, he "was not operating the [subjectvehicle] in furtherance of the garage business" (see Woodson v Mendon Leasing Corp.,100 NY2d 62, 71 [2003]; Matter ofGupta, 38 AD3d 445, 446 [2007]; Lamm v Stevenson, 276 AD2d 531 [2000];Fleet Bank v Powerhouse Trading Corp., 267 AD2d 276, 277 [1999]; see also Hermitage Ins. Co. v Trance NiteClub, Inc., 40 AD3d 1032 [2007]; Silberstein v Presbyterian Hosp. in City of N.Y.,96 AD2d 1096 [1983]). Based on the foregoing, the plaintiff established, prima facie, thatthe accident was not covered by the subject policy which requires it to pay damages for bodilyinjury caused by an accident and resulting from "garage operations" involving the ownership,maintenance or use of a covered auto (see Singh v Allcity Ins. Co., 1 AD3d 501 [2003]; EmpireGroup Allcity Ins. Co. v Cicciaro, 240 AD2d 362, 363 [1997]; Dumblewski v ITTHartford Ins. Group, 213 AD2d 823 [1995]).
Since the plaintiff, as movant, demonstrated its prima facie entitlement to summaryjudgment, the burden shifted to the respondents, as opponents of the motion, to provideevidence, in proper admissible form, sufficient to raise a triable issue of fact (see generallyAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York,49 NY2d 557, 562 [1980]). The respondents failed to meet their burden since their opposingpapers consisted solely of the affirmation of counsel in which hearsay statements of theWhitfield defendants were proffered to defeat the motion (see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]; Collins v Laro Serv. Sys. of N.Y., Inc., 36 AD3d 746, 746-747[2007]; Salzano v Korba, 296 AD2d 393, 395 [2002]; Heifets v Lefkowitz, 271AD2d 490, 491 [2000]; cf. MunicipalTesting Lab., Inc. v Brom, 38 AD3d 862 [2007]; Mazzola v City of New York, 32 AD3d 906 [2006]; Orelli vShowbiz Pizza Time, 302 AD2d 440, 441 [2003]; Ritts v Teslenko, 276 AD2d 768,769 [2000]; Dan's Supreme Supermarkets v Redmont Realty Co., 261 AD2d 353, 354[1999]; Lukin v Bruce, 256 AD2d 388, 389 [1998]; Gomes v Courtesy Bus Co.,251 AD2d 625, 626 [1998]).
Accordingly, the Supreme Court should have granted the plaintiff's motion.
Since this is a declaratory judgment action, the matter must be remitted to the SupremeCourt, Nassau County, for the entry of a judgment declaring that the appellant is not obligated todefend and indemnify the Whitfield defendants in the underlying action entitled Johnson vWhitfield Auto, pending in the Supreme Court, Queens County, under index No. 11628/06(see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74[1962], cert denied 371 US 901 [1962]).
The respondents' remaining contentions are without merit. Skelos, J.P., Dillon, Covello andLeventhal, JJ., concur.