Plaintiff appeals from an order of the Civil Court, New York County, dated October 12, 2004 (Jeffrey K. Oing, J.), which denied his motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

PER CURIAM:

Order dated October 12, 2004 (Jeffrey K. Oing, J.) affirmed, with $10 costs.

Theft of the insured automobile and the ensuing accident occurred on October 24, 1998. The defendant insurance company disclaimed liability and denied coverage on June 16, 2000, and plaintiff sued defendant's insured in September 2001, ultimately obtaining a default judgment against him. Plaintiff's motion below sought enforcement of this default judgment against defendant insurer.

Defendant was entitled to judgment as a matter of law by reason of non-permissive use of the vehicle at the time of the accident (Villamil v Budget Rental, 281 AD2d 207 [2001]; Vehicle & Traffic Law § 388[1]). Specifically, defendant conclusively demonstrated that the insured's vehicle was stolen at the time of the accident (see Pow v Black, 182 AD2d 484 [1992]; Guerra v Kings Plaza Leasing Corp., 172 AD2d 583 [1991]), as reported to the police by the insured that same day and expressly conceded by plaintiff's counsel for purposes of the motions below. Since defendant has established as a matter of law that "there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" (Allstate Ins. Co. v Zuk, 78 NY2d 41, 45 [1991]; cf. Minaya v Horner, 279 AD2d 333 [2001]), defendant was relieved of its duty to indemnify or defend its insured in the underlying personal injury action.

This constitutes the decision and order of the court. [*2]
Decision Date: October 20, 2005