From Casetext: Smarter Legal Research

Continental Insurance Company v. Deschaine

Appellate Division of the Supreme Court of New York, Third Department
Dec 23, 1981
85 A.D.2d 839 (N.Y. App. Div. 1981)

Opinion

December 23, 1981


Appeal from an order of the Supreme Court at Special Term (Hughes, J.), entered March 30, 1981, in Greene County, which, inter alia, granted a motion by certain defendants for summary judgment dismissing the complaint. By the present appeal, plaintiff Continental Insurance Company seeks a reversal of Special Term's order dismissing its complaint against defendants Alan Randall, Rosemary M. Knauf, as executrix under the will of George R. Knauf, and Knauf Brothers, Inc. The subject complaint asserts a cause of action in fraud against them and defendant Valere Deschaine, and plaintiff basically alleges therein that Deschaine's signature on an indemnification agreement dated March 5, 1968 is a forgery, with the result that the agreement is unenforceable against Deschaine. Standing unchallenged in the record, however, is a default judgment obtained by plaintiff against defendant Deschaine based upon Deschaine's nonpayment, as indemnitor, of a contractual obligation arising out of the indemnification agreement. Therefore, plaintiff has obviously obtained enforcement of the agreement which it had previously alleged was unenforceable. Under these circumstances, we hold that the dismissal of the complaint against the other defendants should be affirmed. Having previously obtained a default judgment enforcing the subject indemnification agreement against Deschaine, plaintiff cannot now successfully argue that the agreement is somehow unenforceable because it was a product of fraud (see Hambly v Aetna Cas. Sur. Co., 51 A.D.2d 567). Furthermore, since the agreement has been enforced by the entry of the judgment, plaintiff likewise cannot establish that it has sustained any damage as a result of the alleged fraud (cf. Miller v Livingstone, 25 A.D.2d 106, affd 18 N.Y.2d 967). Order affirmed, without costs. Sweeney, J.P., Main, Mikoll, Yesawich, Jr., and Herlihy, JJ., concur.


Summaries of

Continental Insurance Company v. Deschaine

Appellate Division of the Supreme Court of New York, Third Department
Dec 23, 1981
85 A.D.2d 839 (N.Y. App. Div. 1981)
Case details for

Continental Insurance Company v. Deschaine

Case Details

Full title:CONTINENTAL INSURANCE COMPANY, as Successor in Interest to GLENS FALLS…

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

Date published: Dec 23, 1981

Citations

85 A.D.2d 839 (N.Y. App. Div. 1981)