Opinion
Argued May 8, 2001.
May 29, 2001.
In an action to recover damages for personal injuries, in which the defendants Elizabeth Burke and Concetta Riggio commenced a third-party action for a judgment declaring that the third-party defendant, Vanguard Insurance Company, is obligated to defend and indemnify them in the action, the third-party defendant Vanguard Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Garry, J.), dated January 27, 2000, as granted the cross motion of the defendants third-party plaintiffs for summary judgment on the third-party complaint declaring that it is obligated to defend and indemnify them in the main action.
Paul Sommer, New York, N.Y., for third-party defendant-appellant.
Michael E. Curan, New York, N.Y. (Shahram Tabibzadegan and Dennis Houdek of counsel), for defendants third-party plaintiffs-respondents.
Before: DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, HOWARD MILLER, JJ.
ORDERED that the order is reversed insofar as appealed from, with costs, and the cross motion is denied.
The Supreme Court erred in granting summary judgment to the respondents declaring that the appellant is obligated to defend and indemnify them in the main action. Questions of fact exist as to whether the respondents timely notified the appellant in accordance with policy requirements, and as to whether the respondents demonstrated the existence of a good faith belief in their nonliability (see, Unigard Sec. Ins. Co. v. North Riv. Ins. Co., 79 N.Y.2d 576; Zadrima v. RSM Ins. Cos., 208 A.D.2d 529; Smalls v. Reliable Auto Serv., 205 A.D.2d 523; Winstead v. Uniondale Union Free School Dist., 201 A.D.2d 721). Furthermore, summary judgment should have been denied since substantial discovery remains outstanding (see, Lantigua v. Mallick, 263 A.D.2d 467).
The respondents' remaining contentions are not properly before us.
RITTER, J.P., FRIEDMANN, McGINITY and H. MILLER, JJ., concur.