STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES PLAINTIFF RESPONDENT v. ZACHARY JAENECKE PETER JAENECKE DEFENDANTS APPELLANTS GARY COONS AND ANN COONS DEFENDANTS RESPONDENTS

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES, PLAINTIFF-RESPONDENT, v. ZACHARY J. JAENECKE, PETER J. JAENECKE, DEFENDANTS-APPELLANTS, GARY L. COONS AND ANN M. COONS, DEFENDANTS-RESPONDENTS.

CA 10-01444

Decided: February 18, 2011

PRESENT:  CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ. PILARZ LAW FIRM, BUFFALO (MICHAEL PILARZ OF COUNSEL), FOR DEFENDANTS-APPELLANTS. BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking a declaration that it is not obligated to defend or indemnify Zachary J. Jaenecke and Peter J. Jaenecke (defendants) in the underlying personal injury action commenced by defendants Gary L. Coons and Ann M. Coons.   We note at the outset that the challenge by defendants to that part of the order and judgment declaring that “any bodily injury or damage to Gary L. Coons and Ann M. Coons was not caused by an accident resulting from the ownership, maintenance or use of the Jaenecke vehicle” is not properly before us.  “An appeal from only part of an order [and judgment] constitutes a waiver of the right to appeal from other parts [thereof]” (Johnson v. Transportation Group, Inc., 27 AD3d 1135, 1135).   Here, defendants limited their notice of appeal to that part of the order and judgment denying their motion during trial seeking a declaration that plaintiff was obligated to defend and indemnify them based on plaintiff's alleged failure to comply with Insurance Law § 3420(d), and thus our review is limited to that issue (see Matter of Violet Realty, Inc. v City of Buffalo Planning Bd., 20 AD3d 901, 903-904, lv denied 5 NY3d 713).   We conclude that Supreme Court properly denied the motion and determined that plaintiff “was not required by Insurance Law § 3420(d) to issue a disclaimer in a timely fashion because its denial of coverage was based upon a lack of coverage and not a policy exclusion” (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699).

Patricia L. Morgan

Clerk of the Court