Scala v. Bass

In a severed third-party action against United States Fidelity and Guaranty Company, a liability insurance carrier and third-party defendant, the said insurance company appeals from an order of the Supreme Court, Queens County, dated December 20, 1963, which denied, without prejudice, its motion: (a) to further amend its second amended answer so as to plead noncoverage; or (b) for a direction that proof of such noncoverage is admissible under the denials pleaded in the second amended answer. Order affirmed, with $10 costs and disbursements. In our opinion, proof of non-coverage, if otherwise competent and material, may be received, under the circumstances of this record, under a general denial (Tolmie v. Fidelity & Cas. Co., 95 App. Div. 352, affd. 183 N. Y. 581). The third-party defendant is not foreclosed, by its failure to appeal from the previous order striking out its defense of noncoverage, from offering such proof under the denials contained in its second amended answer. (For prior related decisions, see 17 Misc 2d 981, 23 Misc 2d 83, 13 A D 2d 968, 19 A D 2d 559.) Beldock, P. J., Kleinfeld, Brennan, Hill and Rabin, JJ., concur.