Upon the foregoing papers, the motion for summary judgment of defendants LEONARD ROSKO and MAUREEN ROSKO (Seq. No. 002) is granted; the cross motion for summary judgment of plaintiff ALLSTATE INSURANCE COMPANY (Seq. No. 003) is denied.

Plaintiff ALLSTATE INSURANCE COMPANY (hereinafter ALLSTATE) commenced this declaratory judgment action seeking a determination regarding its obligation to defend and/or indemnify defendant HOLLIS DRISCOLL in the underlying action, Leonard Rosko and Maureen Rosko v. City of New York, Tyrone Pope, Shirley Pope and Hollis Driscoll, which is presently pending in this Court under Index No. 101106/06.

By way of background, the underlying personal injury action was commenced by the ROSKOS to recover damages for injuries sustained by MR. ROSKO (hereinafter plaintiff) when he was struck by a motor vehicle while standing on the sidewalk of Van Duzer Street on Staten Island on December 2, 2005. It has been alleged that two vehicles were racing side-by-side at a high rate of speed along Van Duzer Street when the vehicle driven by defendant HOLLIS DRISCOLL (hereinafter MS. DRISCOLL) apparently ran off the road and struck plaintiff on the sidewalk. The second vehicle was allegedly being driven by codefendant TYRONE POPE.

Plaintiffs subsequently sued both drivers for, e.g, negligence, and THE CITY OF NEW YORK for defects in the design, maintenance and construction of the roadway. In a prior motion, THE CITY OF NEW YORK was awarded summary judgment and the complaint as against it was dismissed.

As is relevant to this declaratory judgment action, ALLSTATE had issued an automobile liability insurance policy to Mary Henderson (the owner of the vehicle being driven by MS. DRISCOLL) which was in effect on December 2, 2005, the date of the subject accident. However, Ms. Henderson had previously died on September 5, 2005 and, according to her Last Will and Testament, MS. DRISCOLL and her brother, Eugene, were named as co-executors and equal heirs to the estate. MS. DRISCOLL also owned a separate vehicle, also insured by ALLSTATE, under a policy with limits of $250,000 per person/ $500,000 per occurrence.^[FN1] It is ALLSTATE's position that title to the vehicle which struck plaintiff has passed to MS. DRISCOLL upon the date of her mother's death such that so much of the policy of liability [*2]insurance on MS. DRISCOLL's own vehicle as provides her with coverage during the operation of a non-owned vehicle is unavailable to provide "excess" coverage for the claims made by the ROSKOS in the pending personal injury action, and seeks the entry of a declaratory judgment to that effect.

In the current application, the ROSKOS seek the dismissal of ALLSTATE's declaratory judgment action, and the entry of an order declaring that the ALLSTATE policy issued directly to MS. DRISCOLL for her separately-owned vehicle should be viewed as providing "excess" coverage for the damages, if any, recovered in the pending personal injury action in the event that they exceed the limits of the Henderson policy.

In support of their position, the ROSKOS contend that legal title to the decedent's vehicle was not transferred to MS. DRISCOLL until February 27, 2006, i.e., after the date of the subject accident, when a certificate of title was executed naming her as the title holder.In addition, they argue that pursuant to the terms of the decedent's ALLSTATE policy, her liability insurance coverage remained in effect until February of 2006, when the policy expired.

Further support for the ROSKOS' position is said to be found within the provisions of the EPTL providing that upon the death of a person, the property of the deceased becomes the property of his or her estate until it is distributed , ^[FN2] and that the subject accident occurred three months after the death of Mary Henderson. Accordingly, they claim that the subject motor vehicle remained a part of the Henderson estate until it was legally transferred to MS. DRISCOLL in February 2006, and that the DRISCOLL policy providing her with liability coverage while operating an unowned vehicle should be available as "excess" coverage insofar as any claims arising out of her operation of the decedent's vehicle is concerned.

In its cross motion for summary judgment and in opposition to the ROSKOS' motion, ALLSTATE maintains a declaration that it is not obligated to defend and/or indemnify MS. DRISCOLL for any claims made against her in the underlying personal injury action to the extent that they exceed the coverage limits in the policy issued to her deceased mother for the vehicle involved in the collision. According to ALLSTATE, the explicit terms of Ms. Henderson's insurance policy state that ALLSTATE would continue to provide coverage in the event of her death "until the end of the premium period for her legal representative while acting as such" (see Plaintiff's Exhibit A, p3). MS. DRISCOLL was a co-executor of her mother's estate on December 2, 2005, since the will appears to have been admitted to probate prior to the accident. As a result, ALLSTATE maintains that while title to the subject vehicle was not legally transferred to MS. DRISCOLL until February 27, 2006, she was an insured under her mother's policy and had become its de facto owner by the time of the accident. Accordingly, ALLSTATE claims that the sole source of liability coverage available to MS. DRISCOLL at the time of the collision was that available under her mother's policy, which was still in effect.

ALLSTATE further argues that the vehicle in question never became the property of the Henderson estate, since an estate cannot own property; rather, it oversees and/or supervises the lawful administration of the decedent's property through its legal representatives, here, MS. DRISCOLL and her brother. The net result, according to ALLSTATE is that the vehicle involved in the accident constituted a part of the decedent's personal property, which had yet to [*3]be distributed under the will and continued to be insured under her ALLSTATE policy until the end of the premium period.

Finally, ALLSTATE argues that the fact that the certificate of title transferring ownership to MS. DRISCOLL was not executed until February 27, 2006, does not, by itself, determine ownership of the vehicle. To the contrary, ALLSTATE argues that ownership of a vehicle passes when the parties intend that it pass, which, under the terms of the will as informed by the actions of the co-executors and heirs, support a determination that MS. DRISCOLL had become the owner of the vehicle prior to the date of the accident. Accordingly, any liability claim arising out of her operation of the vehicle would be covered solely under her deceased mother's policy, which was transferred automatically for the balance of the premium period to MS. DRISCOLL as the decedent's legal representative.

TYRONE and SHIRLEY POPE, codefendants both here and in the personal injury action, have also submitted papers in support of the ROSKOS' motion for summary judgment. It is their position that ALLSTATE should be required to provide coverage to MS. DRISCOLL with regard to the subject accident under both her personal policy and the policy issued to her deceased mother. In this regard, the POPES argue that the vehicle MS. DRISCOLL was driving remained in decedent's name even though she had died prior to the subject accident, and that no decision had yet been reached as to which sibling was going to inherit the vehicle or whether, e.g., it would be sold and the proceeds be divided equally. Accordingly, it should be deemed the property of the Henderson estate until record title passed to MS. DRISCOLL. As a result, the latter's operation thereof at the time of the accident was, as to her, that of an unowned vehicle under the terms of the daughter's policy.

It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320). However, once that initial burden has been satisfied, it is incumbent upon the party opposing the motion to adduce sufficient evidence of the existence of a triable issue (id.). Thus, the court's only role in deciding a motion of summary judgment is to determine whether any material issues of fact exist which require a trial. Here, it is the opinion of this Court that the ROSKOS have established their prima facie entitlement to judgment as a matter of law with regard to the availability of insurance coverage in the personal injury action under both ALLSTATE policies. In opposition, ALLSTATE has failed to raise a triable issue of fact.

It is well settled that title to a motor vehicle passes when the parties intend that it pass (see Cunningham v. Ford, 20 AD3d 897, citing e.g. Bornhurst v. Massachusetts Bonding & Ins. Co., 21 NY2d 581). Generally, ownership is vested in the registered owner of the vehicle or the one holding the documents of title (see Vehicle and Traffic Law §2108[c], Sosnowski v. Kolovas, 127 AD2d 756, 758), but these presumptions are not absolute, and may be rebutted by evidence which demonstrates that another individual owned the vehicle at the time in question (id. at 758).

At bar, while ALLSTATE contends that the transfer of ownership of the subject vehicle to MS. DRISCOLL occurred at the time of her mother's death, this has not been established nor the statutory presumption rebutted. To the contrary, the ROSKOS have established to the satisfaction of this Court that such transfer did not occur until February 27, 2006, when the [*4]certificate of title naming MS. DRISCOLL as the owner was executed.

The mere fact that MS. DRISCOLL was both an heir to her mother's estate and was operating the decedent's motor vehicle at the time of the subject accident is insufficient, standing alone, to establish any intention on the part of the heirs that legal ownership of the vehicle be vested in MS. DRISCOLL at the time of her mother's death or any other time prior to the happening of the accident. In fact, the proof submitted by the parties indicates that MS. DRISCOLL's brother was intended to share equally in the estate, and that the assets thereof were still in the process of being distributed when the accident occurred. In short, ALLSTATE has failed to rebut the above presumption or raise a triable issue that title to the vehicle had passed from Ms. Henderson or her estate to MS. DRISCOLL prior to the subject accident, for coverage which was assured under that clause of the Henderson policy which obligated ALLSTATE to maintain coverage in the event of the death of the named insured "until the end of the premium period for the legal representative [of the deceased] while acting as such". Here, it is undisputed that MS. DRISCOLL was a legal representative of her mother's estate as a co-executor.

In addition to the proof indicating that the transfer of assets out of the decedent's estate had not been completed at the time of the subject accident, ALLSTATE has admitted that it paid for the repairs sustained by the subject vehicle under the deceased mother's policy, and that the documents relating thereto were signed by MS. DRISCOLL as the executor of the estate of Mary Henderson, and not as the owner. Accordingly, as of the accident date, title to the vehicle remained with Ms. Henderson (or her estate), and ALLSTATE was required to provide primary liability coverage under the above-quoted clause extending coverage to the legal representative of a deceased owner until the end of the premium period, i.e., February of 2006. Furthermore, since the express terms of MS. DRISCOLL's individual policy provided that she was entitled to coverage while operating an un-owned vehicle, this policy would operate to provide her with excess insurance, if necessary, in the pending personal injury action (see ALLSTATE Exhibit B, Policy # 9 13 119365 08/18, p6). In this regard, it is worthy of note that ALLSTATE has conceded that if Mary Henderson was still alive at the time of the subject accident, her policy would be regarded as primary, and MS. DRISCOLL's policy would be considered excess insurance.

In light of the above determination, ALLSTATE'S cross motion for summary judgment directing that it is not obligated to defend and/or indemnify MS. DRISCOLL beyond the coverage limits set forth in her deceased mother's motor vehicle policy has been rendered academic.

Settle Order and Judgment on Notice.

E N T E R,

/s/_____

Hon. Thomas P. Aliotta

J.S.C.

Dated:March 24, 2014