Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elrac, Inc. v. GE Capital Insurance Co.

December 23, 2008

ELRAC, INC., D/B/A ENTERPRISE RENT-A-CAR, RESPONDENT-APPELLANT,
v.
GE CAPITAL INSURANCE COMPANY, APPELLANT-RESPONDENT, ET AL., DEFENDANTS.



In an action for a judgment declaring, inter alia, that the defendant GE Capital Insurance Company is obligated to indemnify the plaintiff in an underlying action entitled Martinez v Elrac, Inc., commenced in the Supreme Court, Nassau County, under Index No. 1957/04, the defendant GE Capital Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Sgroi, J.), dated October 18, 2007, as granted the plaintiff's motion for summary judgment to the extent of determining that it is responsible for liability coverage for the subject accident under the insurance policy issued to Crocifissa Mazarese and denied its cross motion for summary judgment, and the plaintiff cross-appeals, as limited by its brief, from so much of the same order as granted its motion for summary judgment only to the extent of determining that the defendant Carmelo Mazarese is covered for the subject accident under the insurance policy issued by the defendant GE Capital Insurance Company to Crocifissa Mazarese.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., MARK C. DILLON, JOSEPH COVELLO and ARIEL E. BELEN, JJ.

(Index No. 15978/05)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, the plaintiff's motion for summary judgment is denied in its entirety, the cross motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring, inter alia, that there was no coverage under the policy of automobile insurance issued by GE Capital Insurance Company to Crocifissa Mazarese for the subject accident, and that GE Capital Insurance Company is not obligated to indemnify the plaintiff in an underlying action entitled Martinez v Elrac, Inc., commenced in the Supreme Court, Nassau County, under Index No. 1957/04; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant GE Capital Insurance Company.

On November 18, 2003, the plaintiff, Elrac, Inc., d/b/a/ Enterprise Rent-A-Car (hereinafter Elrac), leased the subject vehicle (hereinafter the rental vehicle) to the defendant Carmelo Mazarese (hereinafter Mazarese), pursuant to a rental agreement. The rental agreement, which listed Mazarese as the driver, also provided, inter alia, that Mazarese was the only authorized driver and that the rental vehicle would be returned by December 18, 2003.

On January 12, 2004, the rental vehicle was involved in a motor vehicle accident. At the time of the accident, the rental vehicle was being operated by the defendant Lisa Martinez (hereinafter the driver), Mazarese's cousin, who borrowed the car from Mazarese with his permission, but who was not an authorized driver under the rental agreement.

On or about February 13, 2004, the defendant Joseph V. Martinez, the father of the defendant Tess Martinez, the infant passenger (also the daughter of the driver) who was riding in the rental vehicle at the time of the accident, commenced a personal injury action entitled Martinez v Elrac, Inc. (hereinafter the underlying action), in the Supreme Court, Nassau County, under Index No. 1957/04, against Elrac, the driver, and Mazarese. Pursuant to an infant's compromise order entered November 10, 2005, in the underlying action, Elrac, on behalf of itself and Mazarese (whom it represented therein) settled that action for the sum of $1.1 million (hereinafter the settlement).

On or about July 27, 2005, Elrac commenced this action against, among others, the defendant GE Capital Insurance Company (hereinafter GE), the driver, and Mazarese for declaratory relief seeking indemnification from GE.

Elrac and GE moved and cross-moved for summary judgment, respectively. In the order appealed from, the Supreme Court granted Elrac's motion for summary judgment to the extent of determining that Mazarese was covered for the subject accident under a policy of automobile insurance issued by GE to Crocifissa Mazarese (hereinafter the GE policy), Mazarese's mother and the named insured under the GE policy, and denied GE's cross motion. GE and Elrac appeal and cross-appeal, respectively.

Contrary to Elrac's contention, the non-owned auto provision of the GE policy did not provide coverage for the subject accident. The non-owned auto provision stated that "[a]ny relative of [the named insured] who resides in your household is also protected when using a non-owned auto provided that . . . [t]he relative is using the non-owned auto with the owner's permission and for the purpose the owner intended." The term "non-owned auto" is defined in the subject policy as "an auto that is not owned by or registered to the [named insureds] or a resident of your household; and is not furnished or available to [the named ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.