Opinion
Argued February 16, 1967
Decided March 2, 1967
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, CHARLES J. BECKINELLA, J.
Brendan C. Kelly for appellant.
Richard J. Burke and John E. Morris for respondent.
MEMORANDUM. Plaintiff seeks a judgment declaring that defendant insurer is required (a) to defend an action for personal injury brought against plaintiff; and (b) to pay within its stated coverage any judgment in that action. The complaint in this action alleges that the insurance coverage in respect of a truck included "all users" of the truck and "all persons engaged in the loading and unloading thereof". It also alleges that the injured person has commenced an action against plaintiff in which the complaint asserts that the injury occurred while plaintiff in that other action was in the process of loading the truck and when he slipped and fell as he stepped on the truck due to grease picked up on his shoe from the loading platform.
On defendant insurer's motion for summary judgment, this plaintiff offered the examination before trial of the injured person describing his injury as having occurred "As I stepped on the truck", and making no reference to grease on his shoe either from the platform or elsewhere. Plaintiff in this action has shown a sufficient claim arising from the loading of the truck to require defendant to provide a defense; and an issue of fact requiring a trial is shown as to whether the accident was sufficiently related to the loading of the truck to require defendant to indemnify plaintiff for any resulting judgment.
The order granting summary judgment for the defendant should be reversed and the motion denied, with costs.
Chief Judge FULD and Judges VAN VOORHIS, BURKE, SCILEPPI, BERGAN, KEATING and BREITEL concur.
Order reversed and matter remitted to Special Term for further proceedings in accordance with the memorandum herein, with costs in this court and in the Appellate Division.