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December 18, 1959

Jack GOLDSTEIN and Myra Goldstein, an infant, by her Guardian ad Litem, Frances Goldstein, Defendants

The opinion of the court was delivered by: METZNER

Plaintiff moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

This is an action seeking a declaratory judgment that plaintiff has validly disclaimed liability on its policy of insurance because of the lack of cooperation of the insured. The following is a summary of the facts in this case as adduced from the pleadings, the responses to the notice for admissions, and the affidavits submitted on this motion.

 The defendant was the owner and driver of a car that was involved in an accident on April 26, 1956, and at that time there was in existence an automobile liability insurance policy issued by the plaintiff to the defendant.

 Defendant admits that the information given by him to the police officer at the scene of the accident was included in the officer's accident report. That report states that the vehicle operated by defendant 'collided with a pole when it swerved to avoid accident with another auto.' The report of the accident which defendant filed with the Motor Vehicle Bureau stated that the defendant swerved to avoid an accident with another auto 'who swerved over to our insured's auto so close that there was almost contact.' As a result of this swerving, defendant's auto hit a pole. Subsequently the defendant gave a statement to plaintiff's representative, which he signed, which stated that he was traveling about 25 miles an hour when

 'a car came from behind me on the left and as he was passing me he cut into me and cut me off. I swerved to the right to avoid a collision with this car, and in doing so I hit the curb of the sidewalk and lost control of the car, the car went up on the sidewalk and into a pole.'

 Defendant's daughter was a passenger in the car driven by defendant and she was injured as a result of the accident. Her mother was guardian ad litem in an action brought by the daughter against the father for personal injuries. This action was successfully defeated on motion by the attorney for the defendant, who was, of course, the attorney assigned by the insurance company to conduct the litigation under the policy. The basis of the dismissal was that the daughter, who at the time was only 17 years old, was not emancipated and consequently could not sue her parent for a nonwilful tort. Subsequently a second action was instituted by the daughter through her mother as guardian ad litem against her father, in which the complaint alleged that the injuries suffered by the daughter resulted from the wanton and wilful negligence of her father. The complaint detailed the happening of the accident, in which it appears that for a period of about 20 minutes the defendant chased another motor vehicle around the streets of Queens. In this chase the cars had proceeded at excessive rates of speed through red lights until the defendant's car struck the other car, bounced off it and hit a pole. The defendant has admitted to his attorney the truth of the allegations of this second complaint except that he denies that he bounced off the other car. Rather, he says that after the cars scraped he lost control of his own car and hit the pole.

 At the time of the conference between defendant and the attorney, when the defendant admitted the allegations of the second complaint, the defendant also signed a statement admitting that he had lied in his report to the Motor Vehicle Bureau and to the representative of the plaintiff at the time of the interview after the happening of the accident. Defendant said in that statement:

 'Nor did I tell the representative of the insurance company the truth as to how this accident occurred.'

 The statement further states, after detailing the true facts, that:

 'I withheld giving them this information whenever I was interviewed by anyone representing the insurance company.'

 With this record of admissions and undenied allegations, the defendant seeks to defeat this motion on the simple ground stated in his opposing affidavit that:

 'At no time during the said interview (the first interview with the insurance company's representative) did I refuse to answer any of the questions put to me by the plaintiff's representative, nor did I withhold any information which he sought during the said interview.'

 The opposing affidavit further states:

 'When I arrived at my attorney's office, he asked me to tell him what had happened prior to the accident as well as at the moment of the accident. This was the first time that anybody had questioned me with respect to the occurrences ...

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