Allcity Insurance v. Manhattan & Bronx Surface Transit Operating Authority

Judgment (denominated an order), Supreme Court, Bronx County (Dianne T. Renwick, J.), entered January 6, 2005, which denied plaintiffs motion for summary judgment and granted defendant-respondent’s cross motion for summary judgment dismissing the amended complaint and awarding defendant-respondent judgment on its counterclaim, unanimously modified, on the law, to declare in defendant-respondent’s favor that it had no duty to defend or indemnify the New York City Transit Authority, and otherwise affirmed, with costs in favor of defendant-respondent payable by plaintiff. Defendant-respondent did not provide coverage to the Transit Authority, the certificate of insurance notwithstanding (see Insurance Corp. of N.Y. v U.S. Underwriters Ins. Co., 11 AD3d 235 [2004]), and its denial of control over or involvement in the third-party action commenced by the Transit Authority against its insured was unrebutted. Thus, there was no possibility it would be subrogated to its own insured (cf. National Union Fire Ins. Co. of Pittsburgh, Pa. v State Ins. Fund, 213 AD2d 164, 166 [1995] ; National Cas. Co. v State Ins. Fund, 227 AD2d 115, 117 [1996] , lv denied 88 NY2d 813 [1996]). We modify solely to declare in defendant-respondent’s favor (see Lanza v Wagner, 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]). Concur—Buckley, P.J., Tom, Andrias, Sullivan and Malone, JJ.