In an action commenced by plaintiff insurance provider seeking a declaratory judgment that plaintiff was not obligated to defend or indemnify the defendants in connection with a car accident, plaintiff moved for summary judgment. Defendants opposed the motion by asserting that plaintiff failed to timely disclaim coverage for the accident. At the time of the accident, defendant Mark Umude (Mark) was driving a vehicle owned by his brother, nonparty Amoghene Umude (Amoghene). The remaining defendants were passengers in the vehicle. Prior to the accident, plaintiff issued an insurance policy to Amoghene. According to its terms, the policy did not cover any accidents arising while the vehicle was being operated without Amoghene’s permission. In support of its motion, plaintiff submitted a police report which established that upon learning about the accident from a detective, Amoghene told the detective that he had not given Mark permission to use his vehicle. The report further indicated that Mark was charged with Unauthorized Use of Motor Vehicle in the First Degree. In addition, plaintiff submitted the transcript of Amogene’s examination under oath wherein he testified that on the night of the accident, he parked his vehicle outside the home he shared with his brother and did not give anyone permission to use the vehicle. Judge Barbato granted plaintiff’s motion because the accident did “not fall within the ambit of the coverage under the insurance policy” and plaintiff’s failure to timely disclaim could not create coverage where none existed in the first instance.
(internal citations omitted)
American Country Ins. Co. v. Umude, NYLJ 1202792223367, at *1 (Sup. Ct. B. Co. 2017)
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