Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Kristopher KOHL, appellant, v. AMERICAN TRANSIT INSURANCE COMPANY, respondent.
In an action for a judgment declaring that the defendant is required to defend and indemnify the plaintiff in a personal injury action entitled Marmolejo v. Devox, Inc., pending in the Supreme Court, New York County, under Index No. 100033/08, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated July 30, 2008, as granted the defendant's cross motion for summary judgment.
ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant, American Transit Insurance Company, is not obligated to defend and indemnify the plaintiff in the personal injury action entitled Marmolejo v. Devox, Inc., pending in the Supreme Court, New York County, under Index No. 100033/08.
On November 13, 2007, the plaintiff was a passenger in a taxicab insured by the defendant. David Marmolejo allegedly was injured while riding a bicycle when the plaintiff, upon exiting the taxicab, opened a rear door into Marmolejo's path, causing a collision with the open door. In January 2008 Marmolejo commenced a personal injury action in the Supreme Court, New York County, against the plaintiff and the taxicab's owner and driver. In March 2008 the plaintiff commenced this action for a judgment declaring that the defendant was required to defend and indemnify him in the personal injury action. The Supreme Court granted the defendant's cross motion for summary judgment.
The Supreme Court properly granted the defendant's cross motion for summary judgment since the plaintiff is not entitled to a defense or to indemnity for his “use” of a vehicle under the defendant's commercial automobile policy insuring the owner and the driver of the taxi-cab (see Vehicle and Traffic Law § 370[1]; Cohn v. Nationwide Mut. Ins. Co., 286 A.D.2d 699, 700, 730 N.Y.S.2d 152; Swee v. Vals Trans, 225 A.D.2d 113, 115-116, 649 N.Y.S.2d 146).
The plaintiff's remaining contentions are either without merit or improperly raised for the first time on appeal.
We note that since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the personal injury action entitled Marmolejo v. Devox, Inc., pending in the Supreme Court, New York County, under Index No. 100033/08.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Decided: February 24, 2009
Court: Supreme Court, Appellate Division, Second Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
FindLaw for Legal Professionals
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)