Opinion
Decided July 1, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, John C. Marbach, J.
Lawrence D. Kleinman for appellant.
Donald Tirschwell for respondent.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order modified, with costs to plaintiff, by denying defendant's cross application for summary judgment and reinstating the complaint and, as so modified, affirmed. Plaintiff is not entitled to summary judgment in view of defendant's claim, supported by his affidavit, that both he and the bank were to be covered by plaintiff's title policy ( Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175). If defendant was an insured, plaintiff cannot recover from him. But defendant was not entitled to summary judgment either. Plaintiff cannot be regarded as a volunteer in paying the taxes due by defendant. That its contract with the bank required that it make the payment is irrelevant, for it is subrogated to the rights of the bank which was in turn subrogated to the rights of the taxing authorities against defendant, and the bank's interest in the premises which secured its mortgage gave it an interest sufficient to take it out of the classification of a volunteer. Plaintiff will be entitled to judgment unless defendant establishes that he was in fact an insured under the policy.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.