Opinion
May 6, 1976
Order, Supreme Court, New York County, entered March 17, 1975, denying stay of arbitration between petitioner, the United States Fidelity and Guaranty Company and respondent Assenza, and denying intervenors Nevi's motion for summary judgment unanimously affirmed. Respondent General Accident shall recover of petitioner-appellant and intervenors-appellants one bill of $40 costs and disbursements of these appeals. In addition to the reasons stated by the Trial Justice, with which we agree, we note the applicability of State Farm Mut. Auto. Ins. Co. v Elgot ( 48 A.D.2d 362), decided by this court after the decision of the Trial Justice herein. In the present case there appears to be no dispute that corespondent-respondent's (General Accident) policy was not applicable to this accident because the car was owned as well as operated by Lawrence Nevi the son and thus a "relative" of the "named insured" Mario Levi. Lawrence at first said the car was owned by a third person, and the confusion was worse confounded when respondent Assenza's attorney (in good faith) wrote General stating that the car had been conveyed to "your assured Mr. Nevi * * * Mr. Nevi put his license plate No. YN 1541 N Y [the father's plate] on the car when he drove it away." These circumstances contributed to the delay in General's disclaimer, a delay which the Trial Justice found to be not unreasonable. The situation also appears to fit within Stevens, P.J.'s language in State Farm Mut. Auto. Ins. Co. v Elgot (supra, pp 364-365): "State Farm's policy insured the Elgots and a car owned by them. It was not contemplated, nor did the policy purport to insure such car when owned by another person. * * * The Elgots should not by their neglect be permitted to impose liability upon State Farm." Nor should Lawrence Nevi by his misstatements be permitted to impose liability upon General.
Concur — Kupferman, J.P., Lupiano, Birns, Silverman and Nunez, JJ.