Halloway v. State Farm Insurance Companies11/28/2005
therefore, was timely as a matter of law (see New York Cent. Mut. Fire Ins. Co. v Majid, 5 AD3d 447, 448; Federal Ins. Co. v Provenzano, 300 AD2d 485; State Farm Mut. Auto. Ins. Co. v Daniels, 269 AD2d 860, 861).
Although the defendant did not cross-move for summary judgment, this court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212 ; Osborne v Zornberg, 16 AD3d 643, 645; Lacy v New York City Hous. Auth., 4 AD3d 455, 456; Micciche v Homes by Timbers, 1 AD3d 326). Accordingly, under the circumstances of this case, and in the absence of any triable issue of fact as to the timeliness of the disclaimer and the applicability of the livery vehicle exclusion, summary judgment is awarded to State Farm.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of judgment declaring that State Farm is not obligated to defend and indemnify Osborne in the personal injury action entitled Halloway v Osborne, pending in the Supreme Court, Queens County, under Index No. 19772/02 (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
H. MILLER, J.P., ADAMS and SPOLZINO, JJ., concur.
FISHER, J., dissents and votes to affirm and to remit the matter to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant is obligated to defend and indemnify Newton S. Osborne in a personal injury action entitled Halloway v Osborne, pending in the Supreme Court, Queens County, under Index No. 19772/02, with the following memorandum: Because I agree with the Supreme Court that the disclaimer of the defendant, State Farm Insurance Companies (hereinafter State Farm), was untimely as a matter of law, I respectfully dissent.
State Farm issued a policy of insurance covering the subject vehicle, a 1994 Ford van, which was owned by its insured, Newton S. Osborne. It is undisputed that the policy contained an exclusion for liability "arising out of the ownership or operation of vehicle while it is being used to carry persons or property for a fee."
On November 5, 2001, Osborne was operating the van when it was allegedly involved in a collision. State Farm was notified of the accident, not by Osborne, but by an attorney representing the plaintiffs who spoke by telephone to one of State Farm's claim representatives on December 7, 2001.
Later that same day, the plaintiffs' attorney wrote a letter to State Farm asserting, inter alia, that the injured plaintiff had been "a passenger in the Osborne van along with another [unidentified] passenger [and that, w]hen this accident occurred, [Osborne] told both passengers to pick up another 'van' and that there would be 'no charge' for this fare" (emphasis supplied).
Upon receiving the letter, State Farm immediately referred the matter to Sandra-Dee Davis, a claim specialist in State Farm's bodily injury unit. On January 14, 2002, Davis wrote a letter to the plaintiffs' attorney stating that the injured plaintiff was not listed on the police report. Nearly four months later, on May 7, 2002, State Farm, in a letter to the plaintiffs' attorney, disclaimed coverage on the ground that Osborne "was using his vehicle as a livery vehicle." On May 19, 2002, a disclaimer was also issued to Osborne. The plaintiffs subsequently commenced this action seeking a declaration that State Farm is obligated to defend and indemnify Osborne in their personal injury action against him.
The governing principles here are familiar. In order effectively
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