SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

35 

CA 12-00807 

PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ. 

 

ANTHONY PRAVE, III, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, 

ALSO KNOWN AS NEW YORK CENTRAL MUTUAL, 

DEFENDANT-RESPONDENT. 

 

MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

BOEGGEMAN, GEORGE & CORDE, P.C., ALBANY (PAUL A. HURLEY OF COUNSEL),

FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Cayuga County (Mark H.

Fandrich, A.J.), entered September 14, 2011. The order, among other

things, denied in part the motion of plaintiff for summary judgment,

and granted the cross motion of defendant for consolidation. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying the cross motion and

granting the motion in its entirety and as modified the order is

affirmed without costs, and the matter is remitted to Supreme Court,

Cayuga County, for entry of a judgment in favor of plaintiff in

accordance with the following Memorandum: This appeal arises from an

incident in which plaintiff was injured after nonparty James Henderson

struck him while opening the driver’s side door of a vehicle covered

under a liability policy issued by defendant, New York Central Mutual

Fire Insurance Company, also known as New York Central Mutual (NYCM). 

Plaintiff commenced a personal injury action against, inter alia,

Henderson (underlying action). NYCM disclaimed coverage and refused

to defend or indemnify Henderson in the underlying action on the

ground that the incident was the result of an intentional act by

Henderson that was not covered under the policy. Henderson therefore

commenced an action against NYCM in Supreme Court, Oneida County

(declaratory judgment action), seeking, inter alia, a declaration that

NYCM had a duty to defend and indemnify him in the underlying action. 

In a prior appeal in the declaratory judgment action (prior appeal),

this Court concluded that NYCM was required to defend Henderson and

that the issue of indemnification would depend upon the outcome of the

trial in the underlying action, i.e., whether Henderson was found to

be negligent (Henderson v New York Cent. Mut. Fire Ins. Co., 56 AD3d

1141, 1143). After the trial in the underlying action, it was

determined that Henderson was negligent in causing plaintiff’s
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CA 12-00807 

injuries, and a judgment was granted in favor of plaintiff in the

amount of $70,000. 

Plaintiff then commenced this Insurance Law § 3420 (b) action in

Supreme Court, Cayuga County, against NYCM seeking to enforce the

judgment in the underlying action. Thereafter, plaintiff moved for,

inter alia, summary judgment on the complaint, and NYCM cross-moved to

consolidate this matter with the declaratory judgment action. The

court granted plaintiff’s motion in part by dismissing NYCM’s first,

second, fourth and sixth affirmative defenses and otherwise denied the

motion. The court also granted NYCM’s cross motion and ordered that

this matter be transferred to Supreme Court, Oneida County, for

consolidation with the declaratory judgment action. 

We agree with plaintiff that the court erred in failing to grant

his motion for summary judgment in its entirety and in granting NYCM’s

cross motion and thereby transferring this matter. We therefore

modify the order accordingly, and we remit the matter to Supreme

Court, Cayuga County, for entry of a money judgment in favor of

plaintiff. It is well settled that “Insurance Law § 3420 . . . grants

an injured party a right to sue the tortfeasor’s insurer . . . under

limited circumstances—the injured party must first obtain a judgment

against the tortfeasor, serve the insurance company with a copy of the

judgment and await payment for 30 days . . . ‘[T]he effect of the

statute is to give to the injured claimant a cause of action against

an insurer for the same relief that would be due to a solvent

principal seeking indemnity and reimbursement’ ” (Lang v Hanover Ins.

Co., 3 NY3d 350, 354-355). Here, NYCM does not contend that plaintiff

failed to meet those statutory requirements, and plaintiff properly

commenced this action against NYCM. Moreover, as plaintiff correctly

contends, the determinations in the underlying action and in the prior

appeal establish that NYCM is required to indemnify Henderson and

that, as a result, plaintiff has a right to seek indemnification from

NYCM pursuant to section 3420. In the prior appeal, we concluded that

“[t]he court . . . erred in declaring that NYCM has no duty to

indemnify [Henderson]. As noted, the complaint in the underlying

action alleges negligent conduct on the part of . . . Henderson and,

if he accidentally or negligently caused [plaintiff’s] injuries while

opening the driver’s door, that event may be considered an ‘automobile

accident’ within the meaning of the policy . . . and we thus conclude

that the court erred in determining as a matter of law that NYCM had

no such duty. Rather, ‘that determination will abide the trial’ in

the underlying action” (Henderson, 56 AD3d at 1143, quoting Automobile

Ins. Co. of Hartford v Cook, 7 NY3d 131, 138). Henderson was found to

be negligent in the underlying action and, based upon our

determination in the prior appeal, NYCM was therefore required to

indemnify him. Here, plaintiff submitted evidence in support of his

motion establishing as a matter of law that the judgment in the

underlying action included a finding that Henderson was negligent, and

NYCM failed to raise a triable issue of fact. 
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CA 12-00807 

Entered: March 15, 2013 Frances E. Cafarell

Clerk of the Court