Opinion
December 10, 1970
Appeal from the Erie Trial Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Bastow and Henry, JJ.
Order unanimously reversed, with costs and the action restored to the Trial Calendar. Memorandum: By this action an insurer seeks a judgment declaring that it is not bound to defend or pay any damages awarded in personal injury or death actions against the named defendants, alleging (1) that the insured defendant was not the owner of the vehicle at the time of the accident described in the complaint, (2) that timely notice of the accident had not been communicated to the insurer and (3) that there had been a failure of co-operation on the part of the named insured. We think the action should not have been dismissed upon the ground, as expressed by the court, that "there are several areas of substantial dispute in substantial questions of fact affecting the rights of the parties." As stated in appellant's brief, the existence of questions of fact is not a basis for dismissal of an action for declaratory judgment. (3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3001.16.) No brief was filed on behalf of respondent. Furthermore, it does not appear that the determination of the issue of ownership of the vehicle which may be made in the negligence actions will also determine that issue as it relates to liability under the insurance contract issued by plaintiff. While the former may depend on estoppel, the latter may depend on actual ownership. ( Phoenix Ins. Co. v. Guthiel, 2 N.Y.2d 584; Mason v. Allstate Ins. Co., 12 A.D.2d 138, 144.) The question whether the named insured could be estopped from denying ownership is a separate one from the question whether the insurer would be bound by any such estoppel. ( Siebern v. Government Employees Ins. Co., 33 A.D.2d 1026.) Clearly, the other bases for nonliability alleged by plaintiff (lack of timely notice and lack of co-operation) will not be resolved in the negligence action. Plaintiff is entitled to have its rights determined with regard to these claims. ( Charney v. Stypukowski, 35 Misc.2d 662; Trieber v. Hopson, 27 A.D.2d 151; U.S. Fid. Guar. Co. v. von Bargen, 7 A.D.2d 872, affd. 7 N.Y.2d 932.) The action for declaratory judgment should not have been dismissed. ( Downey v. Merchants Mut. Ins. Co., 30 A.D.2d 171, affd. 23 N.Y.2d 989.)