Selective Insurance Company of America v Merchants Insurance Group

Selective Ins. Co. of Am. v Merchants Ins. Group 2005 NY Slip Op 09086 [23 AD3d 638] November 28, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Selective Insurance Company of America, Appellant,
v
Merchants Insurance Group, Respondent, et al., Defendants.

—[*1]In an action for a judgment declaring that the defendant Merchants Insurance Group is obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Ganci v Bloomingdale Props., commenced in the Supreme Court, Kings County, under index No. 705/00, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated September 15, 2004, which denied its motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant Merchants Insurance Group is obligated to indemnify the plaintiff in the underlying personal injury action.

The plaintiff established its entitlement to judgment as a matter of law, as the insurance policy issued by the defendant Merchants Insurance Group (hereinafter Merchants) stated that Merchants would act as a primary insurer. In opposition, Merchants failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). [*2]

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that Merchants is obligated to indemnify the plaintiff in the underlying personal injury action (see Lanza v Wagner, 11 NY2d 317 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). The issue of the defense of this action is now academic.

The parties' remaining contentions are without merit. H. Miller, J.P., Luciano, Dillon and Covello, JJ., concur.