Opinion
April 5, 1985
Appeal from the Supreme Court, Monroe County, Kennedy, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Green and O'Donnell, JJ.
Order unanimously affirmed, with costs. Memorandum: Defendant and third-party plaintiff Nationwide Mutual Insurance Company (Nationwide) appeals from an order granting plaintiff's motion for summary judgment, as well as granting summary judgment to third-party defendant New York Automobile Insurance Plan (Plan) and dismissing Nationwide's third-party complaint. Plaintiff was a passenger in a vehicle owned by third-party defendant Sandra Ehmer and operated by third-party defendant Douglas Ehmer (Ehmers). Plaintiff filed an uninsured motorist arbitration demand upon Nationwide pursuant to the provisions of an insurance policy issued to plaintiff's father. Nationwide received a stay of arbitration and plaintiff brought a declaratory judgment action seeking a determination whether the Ehmer vehicle was insured at the time of the accident. Thereafter, Nationwide commenced a third-party action against the Plan for a declaration of the Plan's obligations with respect to the automobile liability coverage and against the Ehmers for damages in the event their vehicle was in fact uninsured on the date of the accident.
Nationwide acknowledges that no insurance policy was in effect at the time of the accident. The Plan alleged that it never received an application for insurance of the Ehmer vehicle and Nationwide has failed to produce evidentiary proof in admissible form to refute this assertion ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). There being no question of fact whether the Plan ever received an application for insurance of the Ehmer vehicle, the Plan had no obligation to make an assignment of coverage. Special Term, therefore, properly granted plaintiff's motion for summary judgment in the declaratory judgment action.
Special Term properly dismissed Nationwide's third-party complaint because Nationwide failed to establish that the Plan owed any duty or obligation to Nationwide ( see, Alvord Swift v Muller Constr. Co., 46 N.Y.2d 276).