Opinion
March 12, 1993
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, P.J., Green, Balio, Doerr and Boehm, JJ.
Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiff's motion for summary judgment declaring that defendant is obligated to defend and indemnify plaintiff in an underlying personal injury action. That action arose out of a 1984 automobile accident that occurred near Anchorage, Alaska, while plaintiff was in Alaska for a youth hockey tournament. At the time of the accident, plaintiff was operating an automobile provided by the tournament hosts and rented from National Car Rental. The insurance policy covering the automobile was issued by a company that went into liquidation after the accident. Both the Alaska Insurance Guaranty Association and the Liquidation Bureau of the New York State Insurance Department have refused to defend or indemnify plaintiff. At the time of the accident, plaintiff was insured by defendant under an automobile policy that provided liability coverage to her.
In opposing plaintiff's motion for summary judgment, defendant submitted only an attorney's affidavit, consisting of little more than speculation that factual issues may exist precluding summary judgment. Such statements of possible defenses do not constitute proof in admissible form and are inadequate to establish the existence of a factual issue requiring trial (see, Waterman v Yamaha Motor Corp., 184 A.D.2d 1029; see also, Vermette v Kenworth Truck Co., 68 N.Y.2d 714, 717; Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 563). In addition, defense counsel's speculation that further disclosure might reveal coverage by another insurer is insufficient to defeat plaintiff's motion (see, Waterman v. Yamaha Motor Corp., supra), particularly in light of the considerable period of time that has elapsed since the accident.