PROGRESSIVE NORTHEASTERN INSURANCE COMPANY v. James A. Blazina, Defendant.

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

PROGRESSIVE NORTHEASTERN INSURANCE COMPANY, Plaintiff–Respondent, v. FARMERS NEW CENTURY INSURANCE COMPANY, Defendant–Respondent, Megan R. Lindhurst, Defendant–Appellant, James A. Blazina, Defendant.

Decided: April 29, 2011

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ. Cellino & Barnes, P.C., Buffalo (Gregory V. Pajak of Counsel), for Defendant–Appellant. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Erin L. Cody of Counsel), for Defendant–Respondent. Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein, Williamsville (Nicole B. Palmerton of Counsel), for Plaintiff–Respondent.

 Plaintiff commenced this action seeking, inter alia, a declaration that it is not required to provide coverage to any of the defendants in connection with a one-vehicle collision.   The vehicle involved was owned by defendant Megan R. Lindhurst, who had purchased an automobile insurance policy from defendant Farmers New Century Insurance Company (Farmers).   Defendant James A. Blazina, who had purchased an automobile insurance policy from plaintiff, was a passenger in that vehicle.   Contrary to the contention of Lindhurst on appeal, Supreme Court properly granted the respective motion of Farmers and the cross motion of plaintiff for summary judgment and declared, inter alia, that neither insurer was obligated to provide coverage for the collision.  “[A]n issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action” (D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634).   As a result of the one-car collision in question, Blazina was convicted of, inter alia, criminal mischief in the fourth degree due to his actions in turning the steering wheel of the vehicle driven by Lindhurst when he had “no right to do so nor any reasonable ground to believe that he ․ ha[d] such right” (Penal Law § 145.00).   Thus, the issues whether Blazina had a “reasonable belief” that he was entitled to use the vehicle, as required in order to qualify as an insured user under the Farmers policy, and whether he had “express or implied permission” to use the vehicle, as required in order to qualify for coverage under plaintiff's policy, have been conclusively resolved in the criminal proceeding with respect to both Lindhurst and Blazina (see generally D'Arata, 76 N.Y.2d at 665, 563 N.Y.S.2d 24, 564 N.E.2d 634).   Contrary to Lindhurst's contention that plaintiff did not “definitively” disclaim coverage, we note that plaintiff was not required to provide “notice [of disclaimer] when there never was any insurance in effect” (Zappone v. Home Ins. Co., 55 N.Y.2d 131, 138, 447 N.Y.S.2d 911, 432 N.E.2d 783).   In any event, an insurer will not be estopped from disclaiming coverage where, as here, it timely “reserve[d] its right to claim that the policy does not cover the situation at issue, while defending the action” (O'Dowd v. American Sur. Co. of N.Y., 3 N.Y.2d 347, 355, 165 N.Y.S.2d 458, 144 N.E.2d 359).

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

MEMORANDUM: