Majority
p. 1058David Hammerick, Respondent, v Nationwide Mutual Insurance Company, Appellant and Third-Party Plaintiff-Appellant. New York Automobile Insurance Plan, Third-Party Defendant-Respondent, et al., Third-Party Defendants. (Appeal No. 1.)
p. 1059
Nationwide acknowledges that no insurance policy was in effect at the time of the accident. The Plan alleged that it never received an application for insurance of the Ehmer vehicle and Nationwide has failed to produce evidentiary proof in admissible form to refute this assertion (see, Zuckerman v City of New York, 49 NY2d 557 , 562). There being no question of fact whether the Plan ever received an application for insurance of the Ehmer vehicle, the Plan had no obligation to make an assignment of coverage. Special Term, therefore, properly granted plaintiff’s motion for summary judgment in the declaratory judgment action.
Special Term properly dismissed Nationwide’s third-party complaint because Nationwide failed to establish that the Plan owed any duty or obligation to Nationwide (see, Alvord & Swift v Muller Constr. Co., 46 NY2d 276 ). (Appeal from order of Supreme Court, Monroe County, Kennedy, J. — declaratory judgment.) Present — Hancock, Jr., J. P., Callahan, Denman, Green and O’Donnell, JJ.
Cases cited
- Zuckerman v. City of New York 49 NY2d 557 at 562 p. 1059
- Alvord & Swift v. Stewart M. Muller Construction Co. 46 NY2d 276 p. 1059