Peter Pan Bus Lines, Inc. v Hanover Ins. Co.
2018 NY Slip Op 00467
Decided on January 25, 2018
Appellate Division, First Department
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.


Decided on January 25, 2018
Acosta, P.J., Renwick, Kapnick, Kahn, Kern, JJ.

5547 300288/15

[*1]Peter Pan Bus Lines, Inc., Plaintiff-Appellant, Lexington Insurance Company, Plaintiff,

v

The Hanover Insurance Company, Defendant-Respondent.




O'Connor Redd, LLP, Port Chester (Taylor J. Hills of counsel), for appellant.

Baxster Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for respondent.



Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered June 23, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiff Peter Pan Bus Lines, Inc.'s motion for summary judgment declaring that defendant is obligated to defend and indemnify it on a primary, non-contributory basis in the underlying personal injury action and to reimburse it for all reasonable costs, disbursements, and attorneys' fees expended by it in that action, unanimously reversed, on the law, with costs, and the motion granted, and it is so declared.

The insurance policy issued by defendant to Peter Pan provides coverage for damages owed because of, inter alia, " bodily injury' ... caused by an accident' and resulting from the ownership, maintenance or use of a covered auto.'" Regardless of whether the plaintiff in the underlying action, having arrived at her destination on a Peter Pan bus and seen the driver unloading the passengers' luggage, tripped over a suitcase while approaching her own suitcase or tripped on the curb while looking for her suitcase, her accident resulted from Peter Pan's use of the bus, a covered auto, and defendant is obligated to defend and indemnify Peter Pan in the underlying action (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714 [2007]; Axton Cross Co. v Lumbermens Mut. Cas. Co., 176 AD2d 482 [1st Dept 1991], lv dismissed 79 NY2d 822 [1991]; Cosmopolitan Mut. Ins. Co. v Baltimore & Ohio R.R. Co., 18 AD2d 460 [1st Dept 1963]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 25, 2018

CLERK