ANGELO v. PHILADELPHIA INDEMNITY INSURANCE COMPANY (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by reinstating the complaint and granting judgment in favor of defendant as follows:

It is ADJUDGED and DECLARED that plaintiff is not entitled to supplemental uninsured/underinsured motorist coverage from defendant,

and as modified the order is affirmed without costs.

Memorandum: This action arises from an accident that occurred when plaintiff, who was operating her personal motor vehicle while performing work for her employer, was rear-ended by another vehicle. As a result, plaintiff suffered an alleged serious injury within the meaning of Insurance Law § 5102 (d). Because the insurance policy on the other vehicle had a limit of only $100,000 per person, plaintiff informed her employer that she would be filing a claim for supplemental uninsured/underinsured motorist (SUM) benefits with defendant, her employer's insurance company. Approximately 14 months after receiving notice of plaintiff's claim, defendant disclaimed coverage, and plaintiff commenced the instant action seeking a judgment declaring that defendant's disclaimer is invalid and that plaintiff is entitled to SUM benefits. Supreme Court granted defendant's motion for summary judgment dismissing the complaint.

At the outset, we reject plaintiff's contention that the court was required to deny the motion based on defendant's failure to submit its answer with its initial moving papers. Defendant's answer was submitted in its reply papers, was before the court when it decided the motion, and is part of the record on appeal (see CPLR 2001; Miller v. Howard, 134 A.D.3d 1537, 1537, 24 N.Y.S.3d 462 [4th Dept. 2015]; Dale v. Gentry, 66 A.D.3d 1469, 1469, 885 N.Y.S.2d 832 [4th Dept. 2009]).

Contrary to plaintiff's contention, defendant met its initial burden of establishing that plaintiff was not an insured under defendant's policy, and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]). Thus, the court properly determined that defendant's disclaimer was based on a lack of coverage rather than a policy exclusion and that timely disclaimer pursuant to Insurance Law § 3420 (d) was not required (see Progressive Northeastern Ins. Co. v. Farmers New Century Ins. Co., 83 A.D.3d 1519, 1520, 921 N.Y.S.2d 773 [4th Dept. 2011]; Konstantinou v. Phoenix Ins. Co., 74 A.D.3d 1850, 1852, 904 N.Y.S.2d 599 [4th Dept. 2010], lv denied 15 N.Y.3d 712, 2010 WL 4182137 [2010]; see generally Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 188-189, 712 N.Y.S.2d 433, 734 N.E.2d 745 [2000]). The court, however, erred in dismissing the complaint and in failing to declare the rights of the parties in this declaratory judgment action (see Maurizzio v. Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 954, 540 N.Y.S.2d 982, 538 N.E.2d 334 [1989]; Leo v. New York Cent. Mut. Fire Ins. Co., 136 A.D.3d 1333, 1333, 24 N.Y.S.3d 567 [4th Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4742527 [2016]). We therefore modify the order accordingly.