MICHELLE SWIATOWY TUTTLE, INDIVIDUALLY, AND AS ASSIGNEE OF GEOFFREY TUTTLE, PLAINTIFF-APPELLANT,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, DEFENDANT-RESPONDENT.
M. JASEN, P.C., BUFFALO (PETER M. JASEN OF COUNSEL), FOR
HAGELIN SPENCER LLC, BUFFALO (SEAN SPENCER OF COUNSEL), FOR
from an order of the Supreme Court, Genesee County (Mark
Grisanti, A.J.), entered December 29, 2015. The order, inter
alia, granted the motion of defendant for summary judgment
dismissing the complaint.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by denying defendant's motion and
reinstating the complaint, and as modified the order is
affirmed without costs.
Plaintiff commenced this action seeking, inter alia, a
declaration that defendant is obligated to provide coverage
under the policy issued to her former boyfriend, who fell
asleep while operating a vehicle in which plaintiff was a
passenger. The vehicle was owned by plaintiff and insured
under a policy issued by a nonparty insurance company.
Plaintiff's boyfriend owned a separate vehicle, which was
insured under the policy issued by defendant. Plaintiff
commenced the underlying action to recover damages for
injuries that she sustained in the accident and obtained a
judgment in the amount of $332, 187. The nonparty insurer
paid plaintiff the policy limit of $25, 000, and plaintiff
thereafter sought to recover the excess judgment from
defendant on the theory that her boyfriend was operating a
"non-owned car" under the policy issued by
defendant. Initially, defendant reserved its right to
disclaim on the grounds that plaintiff's vehicle was not
a "non-owned car" under the policy and that
defendant was not given notice of the accident within a
reasonable time. Thereafter, defendant issued a disclaimer
only on the ground that plaintiff's vehicle was not a
"non-owned car" under the policy, and plaintiff
commenced this action seeking, inter alia, a declaration that
the policy provided coverage.
agree with plaintiff that Supreme Court erred in granting
defendant's motion for summary judgment dismissing the
complaint on the ground that defendant did not receive notice
of the accident within a reasonable time. It is undisputed
that defendant did not disclaim coverage on that ground, and
defendant thus "is precluded from relying upon that
defense" (Henner v Everdry Mktg. & Mgt.,
Inc., 74 A.D.3d 1776, 1777). Although we agree with
defendant that plaintiff failed to preserve her contention
for our review by failing to raise it in opposition to the
motion, we conclude that "the issue... is one of law
appearing on the face of the record that [defendant] could
not have countered had it been raised in the court of first
instance, and thus the issue may be raised for the first time
on appeal" (id. at 1777-1778 [internal
quotation marks omitted]).
further agree with plaintiff that the court erred in granting
defendant's motion for summary judgment on the additional
ground that plaintiff's vehicle was not a "non-owned
car" under the policy, inasmuch as defendant failed to
meet its burden of establishing its entitlement to judgment
as a matter of law (see Winegrad v New York Univ. Med.
Ctr., 64 N.Y.2d 851, 853). The insurance policy defined
a "non-owned car" as "a car not...
furnished or available for the regular or frequent use
of" the insured. "In determining whether a vehicle
was furnished or available for the regular use of the named
insured, [f]actors to be considered... are the availability
of the vehicle and frequency of its use by the insured'
" (Newman v New York Cent. Mut. Fire Ins. Co.,
8 A.D.3d 1059, 1060; see Konstantinou v Phoenix Ins.
Co., 74 A.D.3d 1850, 1851-1852, lv denied 15
N.Y.3d 712). "The applicability of the policy exclusion
to a particular case must be determined in light of the
purpose of [the] provision [of coverage] for a nonowned
vehicle not [furnished or available] for the regular use of
the insured[, which] is to provide protection to the insured
for the occasional or infrequent use of [a] vehicle not owned
by him or her[, ] and [which coverage] is not intended as a
substitute for insurance on vehicles furnished for the
insured's regular use' " (Newman, 8
A.D.3d at 1060).
support of its motion, defendant submitted the deposition
testimony of the boyfriend and plaintiff, both of whom
testified that the boyfriend had a set of keys to the vehicle
but drove it only on rare occasions. Furthermore, both of
them testified that they had separate vehicles insured under
separate policies and that they did not use those vehicles
interchangeably. Thus, defendant failed to establish as a
matter of law that plaintiff's vehicle was furnished or
available for her boyfriend's regular use. We therefore
conclude that the court erred in granting defendant's
motion for summary judgment on the issue whether
plaintiff's vehicle was a "non-owned car" under
the policy, because there are issues of fact with respect