FESKO v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY

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

Kelly A. FESKO, appellant, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, respondent.

Decided: June 28, 2004

ANITA R. FLORIO, J.P., DANIEL F. LUCIANO, SANDRA L. TOWNES, and STEVEN W. FISHER, JJ. Ronald K. Friedman, PLLC, Fishkill, N.Y., for appellant. Flink, Smith & Associates, Latham, N.Y. (Jeffrey D. Wait of counsel), for respondent.

In an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Sloper-Willen Comm. Ambulance Serv., Inc. v. Fesko, pending in the Supreme Court, Dutchess County, under Index No. 4322/01, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), entered June 2, 2003, which granted the defendant's motion for summary judgment.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the underlying action.

The Supreme Court correctly concluded that the defendant, New York Central Mutual Fire Insurance Company, is not obligated to provide insurance coverage to the plaintiff in the underlying action. The policy contained a specific liability coverage exclusion for the vehicle that the plaintiff was driving at the time of the accident, which was not a “covered vehicle” as designated in the policy.   The defendant, therefore, is not obligated to provide coverage (see August v. New York Cent. Mut. Fire Ins. Co., 98 N.Y.2d 632, 745 N.Y.S.2d 751, 772 N.E.2d 1109;  Jerge v. Buettner, 90 N.Y.2d 950, 665 N.Y.S.2d 45, 687 N.E.2d 1328, revg. on dissent 225 A.D.2d 294, 649 N.Y.S.2d 269).

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Dutchess County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the underlying action (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

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