American Country Insurance v. Jacob Hanukov Bus Services Corp.

In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant Jacob Hanukov Bus Services Corporation in an underlying personal injury action entitled Kalter v Jakob Hanukov Bus Serv. Corp., commenced in the Supreme Court, Kings County, under index No. 2310/08, the defendant Frieda Kalter appeals from an order of the Supreme Court, Kings County (Martin, J.), dated October 5, 2012, which denied her motion for summary judgment and granted the plaintiffs cross motion for summary judgment declaring, in effect, that the plaintiff is not so obligated.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the plaintiffs cross motion for summary judgment, and substituting therefor a provision denying that cross motion; as so modified, the order is affirmed, without costs or disbursements.

While the Supreme Court properly denied the defendant Frieda Kalter’s motion for summary judgment, the court should have denied the plaintiffs cross motion for summary judgment, since there are triable issues of fact as to whether the plaintiffs *644 disclaimer of coverage was timely.