[Download] "Alan Flans Et Al." by Supreme Court of New York ~ eBook PDF Kindle ePub Free
eBook details
- Title: Alan Flans Et Al.
- Author : Supreme Court of New York
- Release Date : January 18, 1977
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 56 KB
Description
[56 A.D.2d 615 Page 615] In an action for a judgment declaring the rights of the parties with respect to a certain policy of insurance, defendant appeals from an order of the Supreme Court, Dutchess County, dated October 6, 1975, which, upon granting plaintiffs' motion to reargue a prior order of the same court, dated July 28, 1975, which granted defendant's motion to dismiss the complaint, denied the motion to dismiss. Order affirmed, with $50 costs and disbursements. Defendant's time to serve its answer is extended until 20 days after entry of the order to be made hereon. Special Term properly denied defendant's motion, which sought to dismiss the complaint on the ground that plaintiffs could have obtained relief by another remedy (see Woollard v Schaffer Stores Co., 272 NY 304). The policy requirement that an action be commenced within 12 months after inception of the loss has been sufficiently complied with. Plaintiffs commenced their first action at law one month after the loss; a second action, for a declaratory judgment, was commenced 11 months after the loss. Neither of those actions were disposed of on the merits, although both of them were dismissed. We deem the present action for a declaratory judgment to be maintainable since an action for identical relief was commenced within the period required by the policy, although this is not, technically speaking, the same action. Gulotta, P. J., Margett and Rabin, JJ., concur; Martuscello, J., dissents and votes to modify the order by deleting the second and third decretal paragraphs thereof which, inter alia, denied defendant's motion to dismiss the complaint, and by substituting therefor a provision that, upon reargument, the original determination is adhered to, with the following memorandum, in which Latham, J., concurs: Defendant issued a homeowners policy to plaintiffs covering their residence. The policy contains the following provision: No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this [56 A.D.2d 615 Page 616]