Opinion
2002-06875
Argued November 18, 2002.
December 16, 2002.
In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend or indemnify its insureds, Uther I. Robinson and Eugene Robinson, in an underlying action entitled Robinson v. Robinson, pending in the Supreme Court, Queens County, under Index No. 12646/99, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Milano, J.), dated April 23, 2002, which granted the motion of the defendants Uther I. Robinson and Eugene Robinson for summary judgment declaring that the plaintiff was obligated to defend and indemnify them in the underlying action, and made the declaration.
Sweetbaum Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for appellant.
Davidov Associates, P.C., Forest Hills, N.Y. (Ilana F. Davidov of counsel), for respondents.
Kathleen M. Sweeney, New York, N.Y., for defendant Motor Vehicle Accident Indemnification Corporation.
Before: FRED T. SANTUCCI, J.P., SANDRA L. TOWNES, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order and judgment is affirmed, with costs.
The Supreme Court correctly determined that, under the circumstances of this case, the belief of the defendants Uther I. Robinson and Eugene Robinson that they would not be subject to liability was reasonable. Consequently, their delay in notifying the plaintiff Eveready Insurance Company (hereinafter Eveready) of the accident was excusable (see Argentina v. Otsego Mut. Fire Ins. Co., 86 N.Y.2d 748, 750, affg 207 A.D.2d 816; White v. City of New York, 81 N.Y.2d 955, 957; Abbey Richmond Ambulance Serv. v. Northbrook Prop. Cas. Ins. Co., 281 A.D.2d 501; New York Cent. Mut. Fire Ins. Co. v. Riley, 234 A.D.2d 279; Winstead v. Uniondale Union Free School Dist., 170 A.D.2d 500).
There is no merit to Eveready's remaining contention that the Supreme Court should have held a hearing on this issue. The Supreme Court was presented with the deposition testimony of the parties to this action and the underlying personal injury action, as well as the documentary evidence the parties relied upon to support their respective arguments. Thus, there was no additional evidence that would have been adduced at a hearing that was not presented on the motion for summary judgment (cf. Argentina v. Otsego Mut. Fire Ins. Co., supra at 750; Witriol v. Travelers Ins. Group, 251 A.D.2d 497, 498; Winstead v. Uniondale Union Free School Dist., supra at 503).
SANTUCCI, J.P., TOWNES, CRANE and RIVERA, JJ., concur.