Velez v. Commercial Union Insurance

—Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: The court should not have granted defendant’s motion dismissing the complaint but rather should have declared the rights of the parties (see, e.g., Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047). We modify the judgment, therefore, to reinstate the complaint and to declare that defendant has no duty to provide coverage for damages sustained by plaintiff, who was injured while a passenger in an automobile driven by the son of defendant’s insureds. (Appeal from Judgment of Supreme Court, Erie County, Doyle, Jr., J.—Dismiss Complaint.) Present—Callahan, J. P., Pine, Lawton, Doerr and Davis, JJ.