GIBBS v. COUNTRY WIDE INSURANCE COMPANY (1999)

Supreme Court properly concluded that plaintiff was bound by the power of attorney provision in the premium finance agreement and that the policy of insurance was properly canceled on April 26, 1994, pursuant to Banking Law § 576.   The court erred, however, in dismissing the complaint rather than declaring the rights of the parties (see, Maurizzio v. Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 954, 540 N.Y.S.2d 982, 538 N.E.2d 334;  Sevenson Hotel Assocs. v. Stranges, 262 A.D.2d 957, 692 N.Y.S.2d 880;  Pless v. Town of Royalton, 185 A.D.2d 659, 660, 585 N.Y.S.2d 650, affd. 81 N.Y.2d 1047, 601 N.Y.S.2d 455, 619 N.E.2d 392).   Thus, we modify the judgment by reinstating the complaint and granting judgment in favor of defendants declaring that defendants have no duty to defend or indemnify plaintiff in a lawsuit arising out of an automobile accident that occurred on May 1, 1994.

Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted.

MEMORANDUM: