Dolch v. Commercial Insurance

Memorandum : Order entered on August 1, 1961 denying defendant’s motion for summary judgment, affirmed, with $20 costs and disbursements to the respondents. Plaintiffs, on February 27, 1959, recovered a judgment after inquest against the owner of a dwelling in an action for personal injuries which is unsatisfied. This action is against the owner’s insurer on a liability policy covering the premises. Defendant’s motion for summary judgment is grounded on an affidavit by an associate of defendant’s attorney, largely hearsay, which includes the following: “ On June 12, 1957 the personal injury action came on for pre-trial * * * It appeared that corroborating proof that the premises was a multiple dwelling would be forthcoming as a basis for alleged liability.” The same affidavit alleges that the defendant insurer thereafter withdrew from the defense of the action “because of the misrepresentation 748 involved ”. The misrepresentation is spelled out by the defendant’s liability policy which describes the building as a two-family dwelling in reliance upon the insured’s representation to that effect. The complaint in the prior action alleged the building was a multiple dwelling and the answer denied the said allegation. The insured’s attorney in response to defendant’s disclaimer dated June 27, 1957 reiterated the denial as follows: “Tour letter of June 27, 195-7 advising of an alleged misrepresentation is not factual, as you have previously been told. The accident occurred when the premises in question was a two family house.” The affidavits on this motion establish a factual issue with regard to whether or not the premises was a multiple dwelling at the time of the occurrence. Defendant, nevertheless, having in the prior action on June 27, 1957 disclaimed liability on its policy by reason of its insured’s alleged misrepresentation, now seeks to estop the plaintiffs from establishing that the covered building was a two-family dwelling because in the prior action the plaintiffs alleged the building was a multiple dwelling and because of what transpired at the informal, unrecorded, pretrial conference more than 20 months before the inquest resulting in the underlying judgment. The defendant’s allegation with regard to the pretrial proceeding on June 12, 1957 is eonelusory; it does not set forth any factual statement by or on behalf of the plaintiffs. This court need not rely thereon. (McDonald v. Ruggiero, 144 App. Div. 230, 231-232.) The answering affidavit of plaintiffs’ counsel, fairly construed, denies any such statement. Estoppel is not alleged in the answer. Moreover, there is no factual basis for precluding plaintiffs from proving that the liability policy was effective at the time of the occurrence and properly described the building as a two-family dwelling. The authorities cited in the dissent show that judicial estoppel may be applied against one who has procured a prior determination upon a state of facts inconsistent with proof tendered in subsequent litigation. The affidavit of plaintiffs’ counsel alleges no evidence was before the court in the prior proceeding that the building was a multiple dwelling. The record of the inquest in the prior action is not before us. There is not before us a finding in the prior action that a multiple dwelling was involved. If we assume that the underlying judgment is erroneous, absent proof of a multiple dwelling, it does not avail the defendant. The defendant elected not to defend the action and the judgment may not be attacked collaterally. We may not at this time search the record of the prior action for error.