Bellefonte Re-Insurance v. Volkswagenwerk AG

Order, Supreme Court, New York County (M. Evans, J.), entered November 21, 1983, denying defendant Volkswagen of America, Inc.’s cross motion for summary judgment and granting the parties certain other relief, is modified, on the law and in the exercise of discretion, to the extent that the complaint is dismissed as not setting forth a proper claim for a declaratory judgment, and the order is otherwise affirmed, without costs, except that each party shall bear one half the cost of reproduction of the record. 11 On oral argument of the appeal respondents, for the first time, called to our attention a clause in the policy requiring notice of an occurrence which appears likely to involve the policy to be given to the company as soon as practicable. There are serious questions as to the applicability and viability of this clause, as to whether it has been waived by the conduct of plaintiff insurance company, either before or after the trial of the underlying personal injury and wrongful death action, as to whether the notice of disclaimer was adequate and as to whether respondent insurance company is otherwise foreclosed from relying on this clause. However, our attention has not been called to any prejudice that the insured appellant has suffered by respondent’s lateness in calling this clause to the court’s attention. 1 We are reluctant to grant final judgment against a party at this early stage of the proceedings and when the case comes to us still unadjudicated at nisi prius because until now the party or its advisors had missed the right clause of the policy. The case is still at or little beyond the pleading stage. “Since it [summary judgment] deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the 754 absence of triable issues.” {Andre v Pomeroy, 35 NY2d 361, 364.) It should not be granted “where the issue is ‘arguable’ ” {Glick & Dollock v Tri-Pac Export Corp., 22 NY2d 439, 441) “[i]n the face of these disputes and uncertainties” {Millerton Agway Coop, v Briarcliff Farms, 17 NY2d 57, 63; accord Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). f Accordingly, we hold that summary judgment was properly denied to defendant Volkswagen of America, Inc. at this time. 11 We agree with Special Term’s other determinations, except that this does not appear to us to be a proper case for declaratory judgment. Declaratory judgment “is usually unnecessary where a full and adequate remedy is already provided by another well-known form of action.” {James v Alderton Dock Yards, 256 NY 298, 305.) The issues between the parties are all properly presented and determinable by the “well-known form” of an action on the policy, which the first counterclaim is. H Accordingly, the complaint should have been dismissed in the exercise of discretion. Concur — Kupferman, J. P., Asch and Alexander, JJ.