St. Barnabas Hospital v. Douglas Elliman Brokerage Corp.

Orders entered May 27, 1982 and February 10, 1983 in Supreme Court, New York County (Eve Preminger, J.), unanimously affirmed for the reasons stated by Special Term, without costs. Order entered September 13, 1982 in Supreme Court, New York County (Clifford Scott, J.) which, inter alia, recalled a previous decision but left intact a determination that the Federal Insurance Company’s policy coverage was but $200,000, unanimously modified, on the law and the facts, by striking the second decretal paragraph of the order and substituting therefor the direction that the American Home Insurance Company’s motion to modify the March 25, 1982 decision is granted, any finding expressing the extent of any insurance coverage is deleted, and the order is otherwise affirmed, without costs. On a motion by Federal for permission to intervene as a plaintiff, Special Term expressed its views on the extent of coverage provided to the hospital by Federal’s policy, with regard to a malpractice incident. The effect of such a determination is tantamount to summary judgment, inappropriate at this stage of the proceeding. There is, at best, an ambiguity as to the excess coverage available under the American Home policy and a clear question of fact as to which of several consecutive Federal policies was applicable. A full trial is necessary to resolve these sharply disputed facts. (Banco di Roma v Merchants Bank, 92 AD2d 42, 44 [citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395].) Concur — Ross, J. P., Carro, Asch and Alexander, JJ.