
    Loreto Pietrantoni, Respondent, v State Farm Insurance Companies, Appellant, et al., Defendant.
    [771 NYS2d 463]
   Appeal from a judgment (denominated order) of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered March 31, 2003. The order granted plaintiff’s motion for summary judgment, rendered a declaratory judgment in favor of plaintiff, and denied the cross motion of defendant State Farm Insurance Companies for summary judgment.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by denying the motion and vacating the declarations and as modified the judgment is affirmed without costs.

Memorandum: Defendant State Farm Insurance Companies (State Farm) appeals from a judgment granting plaintiffs motion for summary judgment declaring that State Farm is obligated to defend and indemnify Toni L. Pietrantoni (defendant) for all damages recovered by plaintiff in his personal injury action against defendant, subject to the monetary limits of State Farm’s policy. An issue of fact exists whether the failure of defendant to testify at trial constituted a breach of his policy with State Farm (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Consequently, we modify the judgment by denying the motion and vacating the declarations. Present— Green, J.P, Scudder, Gorski, Lawton and Hayes, JJ.  