Opinion
April 11, 1966
In an action by an insurance company, which had issued an automobile liability policy to defendant Reeber, to declare that, by reason of a breach by defendant Blersch, as an additional insured, of the "cooperation" clause contained in the policy, plaintiff has the right to disclaim all obligation to Blersch under said policy and that it is not obligated to defend certain negligence actions brought against Blersch by the two respondents, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered June 22, 1965, which, after a nonjury trial, (1) declared that plaintiff is obligated to defend defendant Blersch in said actions and otherwise to afford him coverage under the provisions of the policy and (2) dismissed the amended complaint. Judgment modified on the law, by deleting the decretal provision that the complaint is dismissed. As so modified, judgment affirmed, with one bill of costs to respondents, jointly. The findings of fact are affirmed. We are in accord with the Special Term's declaration of the rights of the parties and its opinion pertaining thereto. However, the court, having declared and defined the parties' rights, should not have ordered dismissal of the complaint ( Lanza v. Wagner, 11 N.Y.2d 317, 334). Ughetta, Acting P.J., Christ, Hill, Rabin and Benjamin, JJ., concur. [ 46 Misc.2d 480.]