Summary
reversing grant of summary judgment on issue of indemnification because judgment in underlying action had not yet been entered
Summary of this case from MIC Gen. Ins. Co. v. ChambersOpinion
January 26, 1987
Appeal from the Supreme Court, Richmond County (Amann, J.).
Ordered that the appeal from the order dated February 18, 1986, is dismissed, without costs or disbursements, as that order was superseded by the order granting reargument; and it is further,
Ordered that the order dated March 18, 1986 is modified, on the law, by deleting the provision thereof which adhered to so much of the original determination as was to the effect that the defendant had no duty to indemnify the plaintiff, and substituting therefor provisions vacating the prior order dated February 18, 1986, and denying that branch of the defendant's summary judgment motion concerning the defendant's duty to indemnify plaintiff and to pay any judgment or settlement within the limits of the insurance policy which may be obtained against the plaintiff in the underlying personal injury action. As so modified, the order is affirmed, without costs or disbursements.
The allegations of the complaint in the underlying personal injury action against the plaintiff do not cast the claim solely and entirely within the policy exclusion regarding the "loading and unloading" of vehicles. Therefore, the defendant has failed to meet its burden of demonstrating that it had no duty to defend the plaintiff as a matter of law (see, Seaboard Sur. Co. v Gillette Co., 64 N.Y.2d 304, 312).
Although the court found that the notice of disclaimer by the defendant was timely served under all of the circumstances, it was error to grant that branch of the defendant's motion which was for summary judgment with respect to the issue of indemnification, which can be resolved only after the trial of the underlying action (cf. Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 N.Y.2d 364, 369, rearg denied 28 N.Y.2d 859). Mangano, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.