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Allstate v. Gardaner

Appellate Division of the Supreme Court of New York, Second Department
Jun 10, 2008
52 A.D.3d 599 (N.Y. App. Div. 2008)

Opinion

No. 2007-04248.

June 10, 2008.

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Kurtz, J.H.O.), dated March 27, 2007, which, after a framed-issue hearing, denied that branch of the petition which was to permanently stay arbitration and, in effect, directed the parties to proceed to arbitration.

Robert P. Tusa (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant.

Before: Miller, J.P., Dillon, Balkin and Chambers, JJ.


Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court correctly determined that Travelers Insurance Company (hereinafter Travelers) was justified in disclaiming insurance coverage for its insured because of his failure to cooperate in the defense of an action against him. Under the circumstances of this case, where there was no cooperation by the insured, the insured could not be located after a diligent search, and there had been misrepresentations made by the insured when applying for insurance, there was a breach of the cooperation clause ( see Nationwide Mut. Ins. Co. v Graham, 275 AD2d 1012, 1013; Peerless Ins. Co. v Sears, 34 AD2d 725, affd 29 NY2d 717; Fidelity Cos. Co. of N.Y. v Holdeman, 23 AD2d 878, 879, affd 18 NY2d 997). Additionally, inasmuch as the driver of the insured's vehicle supplied the police with a nonexistent address, Travelers' failure to serve a separate disclaimer on the driver did not render the original disclaimer ineffective ( see Matter of Allstate Ins. Co. v Rico, 28 AD3d 353, 354).


Summaries of

Allstate v. Gardaner

Appellate Division of the Supreme Court of New York, Second Department
Jun 10, 2008
52 A.D.3d 599 (N.Y. App. Div. 2008)
Case details for

Allstate v. Gardaner

Case Details

Full title:In the Matter of ALLSTATE INSURANCE COMPANY, Appellant, v. ANTHONY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 10, 2008

Citations

52 A.D.3d 599 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 5500
859 N.Y.S.2d 741