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

Anthony D'AMBROSIO, respondent, v. FARM FAMILY INSURANCE COMPANY, appellant.

Decided: September 27, 1999

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN and HOWARD MILLER, JJ. Law Offices of Marc D. Orloff, P.C., Goshen, N.Y. (Anthony J. Perna, Jr., of counsel), for appellant. Grace & Grace, Yorktown Heights, N.Y. (Michael J. Grace of counsel), for respondent.

In an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an action entitled Durham v. D'Ambrosio, pending in Circuit Court, Palm Beach County, Florida, under Case No. 000732/96, the defendant appeals from an order of the Supreme Court, Westchester County (Cowhey, J.), entered December 22, 1998, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the defendant's motion for summary judgment, as triable issues of fact exist as to whether the plaintiff failed to cooperate with the defendant's investigation of the underlying claim (see generally, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 168, 278 N.Y.S.2d 793, 225 N.E.2d 503;  see, Physicians' Reciprocal Insurers v. Keller, 243 A.D.2d 547, 665 N.Y.S.2d 515), and whether the claimant was an employee or independent contractor of the plaintiff (see, Mason v. Spendiff, 238 A.D.2d 780, 656 N.Y.S.2d 462).


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