Kamens v. Utica Mutual Insurance

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered January 3, 2003. The order, insofar as appealed from, granted plaintiffs summary judgment dismissing the affirmative defenses and counterclaim of intervenor-defendant.

It is hereby ordered that the order insofar as appealed from be and the same hereby is reversed on the law without costs, the fifth ordering paragraph is vacated, and the complaint against intervenor-defendant is dismissed.

Same memorandum as in Kamens v Utica Mut. Ins. Co. (6 AD3d 1237 [2004]).

All concur except Pigott, Jr., P.J. and Hayes, J., who dissent and vote to affirm in the same dissenting memorandum as in Kamens v Utica Mut. Ins. Co. (6 AD3d 1237, 1243 [2004]). Present—Pigott, Jr., EJ., Wisner, Kehoe, Lawton and Hayes, JJ.