Opinion
March 9, 1995
Appeal from the Supreme Court, Montgomery County (Best, J.).
Plaintiff Timothy P. Dumblewski (hereinafter plaintiff) and his wife, plaintiff Sharon M. Dumblewski, are the owners/operators of S.F.T.D. Service Centers, a gas station located in the City of Amsterdam, Montgomery County. Lori Jackowski heard a banging noise in the front end of her automobile and experienced problems with the front axle. She arranged to leave her automobile at plaintiffs' gas station for repairs. Jackowski knew that plaintiff would test drive the vehicle. Four or five days later on Saturday, June 23, 1990, plaintiff closed the gas station at about 9:15 P.M. and drove Jackowski's vehicle to Geno's Pub. Plaintiff drank eight highballs and met Penny Raab. They left Geno's Pub at 12:30 A.M. and went to another bar where plaintiff drank one half of another highball. Plaintiff left the bar to take Raab home using Jackowski's vehicle and, at 1:55 A.M. on Sunday, June 24, 1990 they were involved in an automobile accident with a vehicle driven by Lloyd Edgar.
As a result of this accident, plaintiff pleaded guilty to driving while intoxicated and unlicensed operation of a motor vehicle (plaintiff's license had been suspended since Nov. 1989).
Both Raab and Edgar commenced personal injury actions naming plaintiffs and S.F.T.D. as defendants. Plaintiffs commenced a third-party action impleading others including S.F.T.D.'s business insurer, defendant ITT Hartford Insurance Group (hereinafter Hartford), for indemnification and a declaratory judgment regarding coverage under a policy of liability insurance. After the declaratory judgment action was severed from the two personal injury actions, Hartford moved for summary judgment and plaintiffs cross-moved for summary judgment. Finding that Hartford was not obligated to defend and indemnify plaintiffs, Supreme Court granted Hartford's motion and denied plaintiffs' cross motion. Plaintiffs appeal.
Under the policy at issue, Hartford agreed to "pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies caused by an accident and resulting from garage operations" (emphasis in original). The dispositive issue is whether the accident arose out of "garage operations" within the meaning of the policy. Under the circumstances of this case, the policy language restricts the application of "garage operations" to the use of covered autos. The borrowed Jackowski vehicle is a covered auto within the meaning of the policy only if it was being used "in connection with [plaintiffs'] garage business". Here, the undisputed facts belie plaintiff's claim that he was "test-driving" Jackowski's vehicle at the time of the accident. His use of the vehicle was clearly personal.
Significantly, neither complaint alleges that, at the time of the accident, plaintiff was operating Jackowski's vehicle in connection with his garage business (see, Smith Pontiac-GMC Truck Ctr. v. Hartford Acc. Indem. Co., 194 A.D.2d 906, 907). Based upon our review of the language of the policy in issue and the factual allegations of the complaints in the underlying personal injury actions, we discern no factual or legal basis for indemnification under any of the provisions of the policy and, therefore, no duty to defend as a matter of law (see, Minerva v Merchants Mut. Ins. Co., 117 A.D.2d 720; compare, Spoor-Lasher Co. v. Aetna Cas. Sur. Co., 39 N.Y.2d 875). Accordingly, Hartford was properly awarded summary judgment dismissing the complaint (cf., Hough v. United States Fid. Guar. Co., 192 A.D.2d 1035).
Mercure, Casey, Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.