Opinion
2003-01857.
Decided May 10, 2004.
In an action, inter alia, for a judgment declaring that the defendant Insurance Corporation of New York is obligated to defend the plaintiff in an underlying personal injury action entitled Parzych v. 109-Suffolk Corp., pending in the Supreme Court, Kings County, under Index No. 22627/01, the defendant Insurance Corporation of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated January 16, 2003, as granted the plaintiff's motion for summary judgment declaring that it is obligated to defend the plaintiff in the underlying personal injury action and denied its cross motion for summary judgment, or, in the alternative, for change of venue.
Israelson Gold, Plainview, N.Y. (Jeffrey B. Gold and James Stewart of counsel), for appellant.
McDonald, Carroll, Cohen Rayhill, New York, N.Y. (Michael A. Buffa of counsel), for defendant-respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, DANIEL F. LUCIANO, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant Insurance Corporation of New York is obligated to defend the plaintiff in the underlying personal injury action.
The Supreme Court properly determined that the defendant Insurance Corporation of New York (hereinafter Inscorp) was obligated to defend the plaintiff in the underlying personal injury action. The plaintiff satisfied its burden of establishing its entitlement to judgment as a matter of law. In opposition, Inscorp failed to raise a triable issue of fact to sustain either of its grounds for disclaiming coverage ( see General Acc. Ins. Group v. Cirucci, 46 N.Y.2d 862, 864).
Inscorp's remaining contentions are without merit.
Since this is a declaratory judgment action, the Supreme Court should have directed the entry of a judgment declaring that Inscorp is obligated to defend the plaintiff in the underlying personal injury action entitled Parzych v. 109-Suffolk Corp., pending in the Supreme Court, Kings County, under Index No. 22627/01 ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
ALTMAN, J.P., S. MILLER, LUCIANO and CRANE, JJ., concur.