38 A.D.2d 736 | N.Y. App. Div. | 1972
In an action for a declaratory judgment and other incidental relief, the appeal is from a judgment of the Supreme Court, Suffolk County, entered January 26, 1971 after a non jury trial, in favor of plaintiff against defendant Nationwide Insurance Company. Appeal by defendant Alba dismissed, without costs. The judgment is not against her and therefore she has no standing to appeal therefrom. Judgment reversed, on the law, with costs to appellant Nationwide, and complaint dismissed as against defendant Nationwide Insurance Company, without prejudice to an application by plaintiff, in the separate proceeding which it instituted for a stay of arbitration, to continue the stay that was granted therein, as hereinbelow indicated. In March, 1969 a pickup truck owned by defendant Alba and operated by defendant Tyson collided with an automobile owned and operated by defendant Alfred Szego, in which defendant Augusta Szego was a passenger. The Szego car was insured by plaintiff, Allstate Insurance Company; and the Alba vehicle was insured by defendant Nationwide Insurance Company. Nationwide agreed to defend its named policyholder, Alba, but disclaimed as to Tyson, claiming he had exceeded his permission to operate the truck. Szego thereupon made claim against his own carrier, Allstate, contending that the Alba truck was an uninsured vehicle by virtue of the Nationwide disclaimer. Allstate denied liability to its insured under the uninsured motorist provisions of its policy and moved for a stay of arbitration. The court granted the stay on condition that Allstate institute an action for a declaratory judgment to determine the issue. Accordingly, Allstate commenced the present action for judgment declaring that Nationwide’s policy was in full force and effect at the time of the accident, that its disclaimer was invalid,
