Opinion
Argued June 4, 1992
Decided July 1, 1992
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Beatrice Shainswit, J. Michael Majewski and Peter F. Broderick for appellants.
Joshua L. Mallin, Barbara A. Matarazzo and Dennis T. D'Antonio for Gjelosh Dedvukaj, respondent.
Nathan Cyperstein and Barbara M. Berk for Public Service Mutual Insurance Company, respondent.
MEMORANDUM.
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the cross motion by defendants Allstate Insurance Company and Jim Bandelli for summary judgment granted, and the certified question answered in the negative.
Plaintiff's premises, a garden apartment complex in Brooklyn, were insured by Public Service Mutual Insurance Company for the period from January 1984 through January 1985. This policy was automatically renewed for 1985, effective through January 1986. Plaintiff had been negotiating for alternative coverage with defendant Jim Bandelli, as agent for defendant Allstate, and in February 1985 an Allstate policy was issued to plaintiff covering the period from March 1, 1985 to March 1, 1986. On March 21, 1985 — three weeks after the effective date of the Allstate policy, as shown on the face of the document — plaintiff requested cancellation of the Public Service policy retroactive to January 1, 1985. Public Service refunded to plaintiff all premiums paid through the date of cancellation. In June 1986, plaintiff was served with a summons and complaint by a person claiming to have fallen on the subject premises on January 22, 1985.
In the present action, plaintiff seeks a declaration that Allstate has a duty to defend him in the personal injury action, based on coverage he negotiated with defendant Bandelli effective December 26, 1984. We agree with the dissenter at the Appellate Division that defendants were entitled to summary judgment. On this record, plaintiff's assertion that Bandelli promised to provide some type of coverage effective December 26, 1985 is insufficient to overcome defendants' motion for summary judgment.
Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order, insofar as appealed from, reversed, etc.