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Batchie v. Travelers Insurance

130 A.D.2d 536 Court N.Y. App. Div. Decision date 1987-05-11 English

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p. 536
Dennis Batchie et al., Appellants-Respondents, v Travelers Insurance Company, Respondent-Appellant, and Charles A. J. Yeager, Inc., Respondent.

In an action, inter alia, for a judgment declaring that the Travelers Insurance Company (hereinafter Travelers) must defend and indemnify the plaintiffs with respect to an accident occurring on December 2, 1980, the plaintiffs appeal, as limited by their

p. 537
brief, from so much of an order of the Supreme Court, Westchester County (Martin, J.), dated August 25, 1986, as denied that branch of their motion which was for partial summary judgment with respect to the issues of indemnity and negligence, and Travelers cross-appeals from so much of the same order as granted that branch of the plaintiffs’ motion which was for partial summary judgment directing it to provide the plaintiffs with a defense in the underlying action.

Ordered that the cross appeal is dismissed, without costs or disbursements.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Travelers’ cross appeal is dismissed for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8, 670.20 [d]; Kapchan v Kapchan, 104 AD2d 358 ).

The plaintiffs are not entitled to partial summary judgment against their insurer Travelers, with respect to the issue of indemnity on the ground that Travelers violated Insurance Law § 3420 (d) by failing to give the injured parties prompt notice of its denial of coverage (see, Zappone v Home Ins. Co., 55 NY2d 131 ; Allstate Ins. Co. v Gross, 27 NY2d 263 ). The plaintiffs have no standing to assert this statutory violation, since they have not suffered an injury as the result thereof and they are not within the zone of interest which the statutory requirement of notice to the injured parties seeks to protect (see, Matter of District Attorney of Suffolk County, 58 NY2d 436 , 442; Dunn v Fishbein, 123 AD2d 659 , 660).

Furthermore, the existence of issues of fact regarding the plaintiffs’ claims of estoppel against Travelers and their claims of negligence against the defendant Charles A. J. Yeager Agency, Inc. preclude the granting of partial summary judgment with respect to those claims.

We have considered the remaining contentions of the parties and find them to be without merit. Thompson, J. P., Bracken, Rubin and Fiber, JJ., concur.

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