Utica Mutual Insurance v. Prudential Property & Casualty Insurance

| NY | Apr 23, 1985

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice Leon D. Lazer (103 AD2d 60).

We add that Prudential’s argument based upon Warner Hardware Co. v Allstate Ins. Co. (309 Minn 529, 245 N.W.2d 223" court="Minn." date_filed="1976-08-06" href="https://app.midpage.ai/document/warner-hardware-co-v-allstate-insurance-1980729?utm_source=webapp" opinion_id="1980729">245 NW2d 223) that the risk involved is a general business risk covered by Utica’s policy rather than an automobile risk covered by its policy having been first raised in this court has not been considered by us (see, Telaro v Telaro, 25 NY2d 433, 438). Moreover, on the facts of this case the “complete operation” rule declared in Wagman v American Fid. & Cas. Co. (304 NY 490, 494) is without consequence, the injuries on which the underlying action is predicated having arisen out of and resulted from negligence in the loading of the vehicle insured by Prudential (see, Cosmopolitan Mut. Ins. Co. v Baltimore & Ohio R.R. Co., 18 AD2d 460; Employers Mut. Liab. Ins. Co. v Aetna Cas. & Sur. Co., 7 AD2d 853, lv denied 6 NY2d 705).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs, in a memorandum.