Opinion
335 CA 19-01236
08-20-2020
Kristyn JOHNSON-NEULAND, Plaintiff-Appellant, v. NEW YORK MUNICIPAL INSURANCE RECIPROCAL, Defendant-Respondent.
STANLEY LAW OFFICES, SYRACUSE (STEPHANIE VISCELLI OF COUNSEL), FOR PLAINTIFF-APPELLANT. CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (AVIS SPENCER DECAIRE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
STANLEY LAW OFFICES, SYRACUSE (STEPHANIE VISCELLI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (AVIS SPENCER DECAIRE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PERADOTTO, J.P., TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, a parking attendant employed by the City of Oswego (City), was injured when the City police vehicle she was operating was struck by an underinsured motorist. Plaintiff sought supplementary uninsured/underinsured motorist (SUM) coverage from defendant as the City's insurer, but defendant denied coverage to plaintiff because she was driving a police vehicle when the accident occurred. Plaintiff subsequently commenced the instant action against defendant, seeking SUM coverage. Supreme Court granted defendant's motion insofar as it sought summary judgment dismissing the complaint. We affirm.
Plaintiff contends that defendant's motion for summary judgment was premature. We reject that contention inasmuch as plaintiff failed to demonstrate that additional discovery would lead to relevant evidence or give rise to an identifiable issue of fact (see State of New York v. County of Erie , 265 A.D.2d 853, 853, 695 N.Y.S.2d 815 [4th Dept. 1999] ; see also Nationwide Affinity Ins. Co. of Am. v. Beacon Acupuncture, P.C. , 175 A.D.3d 1836, 1837, 109 N.Y.S.3d 812 [4th Dept. 2019] ).
We also reject plaintiff's contention that defendant and the City intended for the subject insurance policy to include SUM coverage for the subject vehicle. The insurance policy did not explicitly provide for SUM coverage for the subject vehicle, and it is well-settled that a police vehicle is not a motor vehicle for purposes of SUM coverage (see Matter of State Farm Mut. Auto. Ins. Co. v. Fitzgerald , 25 N.Y.3d 799, 820-821, 16 N.Y.S.3d 796, 38 N.E.3d 325 [2015] ; Matter of State Farm Mut. Auto. Ins. Co. v. Amato , 72 N.Y.2d 288, 294-295, 532 N.Y.S.2d 239, 528 N.E.2d 162 [1988] ).
Finally, we reject plaintiff's contention that defendant should be equitably estopped from denying SUM coverage. Defendant met its initial burden on the motion of establishing that it did not represent to plaintiff that SUM coverage existed, and plaintiff failed to raise an issue of fact in opposition. Contrary to plaintiff's contention, the evidence does not demonstrate that defendant made affirmative representations that SUM coverage existed and was available to her (see Reeve v. General Acc. Ins. Co. of N.Y. , 239 A.D.2d 759, 761, 658 N.Y.S.2d 143 [3d Dept. 1997] ; see also U.S. Specialty Ins. Co. v. Beale , 54 Misc. 3d 880, 881-882, 42 N.Y.S.3d 562 [Sup. Ct., Dutchess County 2016] ).