Terry v. Farmer's Insurance Co. of Arizona

653 N.Y.S.2d 767 | N.Y. App. Div. | 1997

—Order unanimously affirmed without costs. Memorandum: Plaintiff’s son, 14-year-old David Terry, II, was allegedly injured when he was struck by a snowmobile operated by defendant Craig Bolibruzck. Plaintiff commenced this action seeking judgment declaring that coverage for the injury to plaintiff’s son is provided by a homeowner’s policy issued by defendant Farmer’s Insurance Company of Arizona (Farmer’s) to Bolibruzck’s mother, defendant Peggy Wagner.

Supreme Court properly granted the motion of Farmer’s to dismiss the complaint. Because no personal injury action has been commenced to recover damages against defendants Bolibruzck and Wagner, the declaratory judgment action is premature (see, Allstate Ins. Co. v Hertz Corp., 119 AD2d 612, 613; Soto v MVAIC, 23 AD2d 728). Further, there is no basis for the exercise of personal jurisdiction over Farmer’s, an Arizona corporation with its principal place of business in Phoenix, Arizona. Farmer’s is not authorized to do business in New York; has no office in New York; has no agents, employees or representatives in New York; and does not write policies for any type of insurance coverage in New York. The policy at issue was issued to Wagner, an Arizona resident, to cover her home in Tempe, Arizona. Thus, jurisdiction cannot be predicated upon Farmer’s transacting business or contracting to provide goods or services in this State (see, CPLR 302 [a] [1]; Wiesner v Stevens Hosp., 65 Misc 2d 102, 103-104). Further, the alleged breach of the insurance contract by Farmer’s does not constitute a tortious act and will not support the exercise of long-arm jurisdiction under CPLR 302 (a) (2) or (3) (see, Amigo Foods Corp. v Marine Midland Bank, 39 NY2d 391, 396; Pride Labs, v Athea Labs., 54 AD2d 976, 977). (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Declaratory Judgment.) Present—Green, J. P., Pine, Callahan, Balio and Boehm, JJ.