
    Chicago Title Insurance Company, Appellant, v Kenneth C. Heskestad, Respondent.
    Decided July 1, 1982
    
      APPEARANCES OF COUNSEL
    
      Lawrence D. Kleinman for appellant.
    
      Donald Tirschwell for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order modified, with costs to plaintiff, by denying defendant’s cross application for summary judgment and reinstating the complaint and, as so modified, affirmed. Plaintiff is not entitled to summary judgment in view of defendant’s claim, supported by his affidavit, that both he and the bank were to be covered by plaintiff’s title policy (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175). If defendant was an insured, plaintiff cannot recover from him. But defendant was not entitled to summary judgment either. Plaintiff cannot be regarded as a volunteer in paying the taxes due by defendant. That its contract with the bank required that it make the payment is irrelevant, for it is subrogated to the rights of the bank which was in turn subrogated to the rights of the taxing authorities against defendant, and the bank’s interest in the premises which secured its mortgage gave it an interest sufficient to take it out of the classification of a volunteer. Plaintiff will be entitled to judgment unless defendant establishes that he was in fact an insured under the policy.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.  