Cassara v. Nationwide Mutual Insurance

Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting defendant’s motion to compel plaintiff to submit to further discovery in this declaratory judgment action. On a prior appeal we held that defen 819 dant, as an excess carrier, had the duty to defend and indemnify plaintiff with respect to plaintiff’s operation of a non-owned vehicle involved in an accident (Cassara v Nationwide Mut. Ins. Co., 144 AD2d 974, 975). There is no need for further discovery on the issue whether plaintiff was using the vehicle for a business purpose because our finding in the prior appeal that the disclaimer was insufficient as a matter of law obligated defendant to defend and indemnify plaintiff. All other issues on that appeal were subsumed within our analysis and holding on the disclaimer issue (see, Technicon Elecs. Corp. v American Home Assur. Co., 141 AD2d 124, affd 74 NY2d 66, 76). (Appeal from order of Supreme Court, Monroe County, Willis, J.—discovery.) Present—Dillon, P. J., Denman, Green, Pine and Lowery, JJ.