
    [653 NYS2d 787]
    Jonathan Bell et al., Appellants, v Manning Morris et al., Respondents.
    Supreme Court, Appellate Term, Second Department,
    August 7, 1996
    APPEARANCES OF COUNSEL
    
      Karp, Silver & Glinkenhouse, Far Rockaway (Gil Winokur of counsel), for appellants. Torres & Associates, P. C., New York City (Seymour I. Yanofsky of counsel), for Motor Vehicle Accident Indemnification Corporation, respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this negligence action for personal injuries, the record indicates that the plaintiffs were passengers in a vehicle driven by defendant Fritzgone and owned by defendant Morris when it was involved in an accident on August 3, 1990. The plaintiffs’ unopposed motion in the court below was to, inter alia, compel Motor Vehicle Accident Indemnification Corporation (MVAIC) to submit an answer on behalf of the defendants because the vehicle was not insured on the date of the accident. Plaintiffs asserted that Travelers Insurance Company had terminated the insurance on April 9, 1990. The court denied that part of the motion.

In our view the order should be affirmed. We initially note that the Civil Court lacks injunctive power, except in certain instances not here relevant, and cannot compel MVAIC to submit an answer on behalf of defendants. (Although not applicable here, CCA 212-a does grant the court jurisdiction to make a declaratory judgment with respect to a controversy involving an insurer’s obligation to defend.) In any event, the plaintiffs have failed to establish a valid termination of Travelers Insurance Company’s policy of insurance issued to defendant Morris. If the automobile liability insurer (Travelers) had successfully established a valid termination of its policy prior to the accident, and if the vehicle was uninsured at the time of the occurrence, MVAIC would then be obligated to appear and defend (Viuker v Allstate Ins. Co., 70 AD2d 295). MVAIC could not be compelled at this juncture to submit an answer on behalf of Morris and Fritzgone, since there has been no determination that Morris, in fact, was not insured by Travelers at the time of the accident. It being established that Travelers had previously insured Morris, the burden should be on plaintiffs, at least in the absence of Travelers before the court, to come forward with proof of an effective cancellation by Travelers, since, as between plaintiffs and MVAIC, it is plaintiffs who plead and rely on such cancellation (Muhammad v Diaz, 198 AD2d 32).

In the case at bar, the plaintiffs merely rely on a letter from a senior claims representative which states that the accident occurred on August 3, 1990 and the policy was cancelled effective April 9, 1990. However, the only proof to support this statement is an illegible photostat of a notice cancelling the insurance for apparently not paying the premium. The effective date of the cancellation is illegible. This is insufficient to establish an effective cancellation.

Aronin, J.,

dissents and votes to reverse the order insofar as appealed from and to remand the matter to the court below for further proceedings in the following memorandum. The record before this court reflects that plaintiffs, passengers in a motor vehicle driven by defendant Fritzgone and owned by defendant Morris, were injured when said vehicle was involved in an accident on August 3, 1990. Neither defendant has appeared or answered. Moreover, it appears that the Morris vehicle was uninsured at the time, based on certain documents submitted by Travelers Insurance Company to plaintiffs’ counsel, purporting to show its termination of insurance for the vehicle in question on April 9, 1990.

Based on these circumstances, plaintiffs’ counsel moved for an order compelling Motor Vehicle Accident Indemnification Corporation (MVAIC) to submit an answer on behalf of said defendants who drove and operated an uninsured motor vehicle in contravention of law. The court below summarily concluded that plaintiffs were not entitled to such relief based on the papers alone, without conducting a framed issue hearing on the question of insurance coverage or converting the matter into a declaratory judgment proceeding pursuant to CCA 212, 212-a, 2102; and CPLR 103 (c) and 2001. Plainly, the court is empowered to correct "all defects in matters of procedure and award the appropriate relief’ (People ex rel. Gleason v Purdy, 223 NY 88, 91; Matter of City of Little Falls v Board of Assessors, 68 AD2d 734, 741).

MVAIC is obligated to appear and defend in an action where it is established that the motor vehicle in question was uninsured at the time of the accident, or if the automobile liability insurer (here, Travelers) validly and effectively terminated the policy prior to the accident (Viuker v Allstate Ins. Co., 70 AD2d 295; Muhammad v Diaz, 198 AD2d 32, 33). Generally, the appropriate method to resolve disputed issues regarding coverage is a framed issue hearing (CPLR 7503) or through a declaratory judgment action (CPLR 3001; CCA 212-a). However, there is no statutory authority to commence a special proceeding for a framed issue hearing in Civil Court; instead, a party may seek judicial resolution of an issue regarding insurance coverage by commencing a declaratory judgment action in Civil Court (CCA 212-a) or by motion in an action pending in the Civil Court (CCA 206 [a]). In the record before this court, plaintiffs raised the issue of uninsured vehicle based on Traveler’s purported cancellation via a motion in the pending negligence Civil Court action. By so doing, plaintiffs established proof of no insurance, thus warranting a hearing to permit MVAIC to adduce evidence to the contrary. Simply put, the court below erred by summarily denying plaintiff’s motion without conducting a framed issue hearing, or converting same into a declaratory judgment proceeding (CCA 206 [a]; 212, 212-a, 2102; CPLR 103 [c]; 2001). Matter of Blenman v MVAIC (NYLJ, June 17, 1996 [App Term, 2d & 11th Jud Dists]) involved a special proceeding to order MVAIC to pay a judgment (Insurance Law § 5210). This court set aside the default judgment against the (uninsured) defendants therein insofar as it affected MVAIC and permitted MVAIC to defend and serve an answer (Insurance Law § 5214). In the case at bar, defendants have defaulted in the action and plaintiff would have been entitled to a default judgment had they served said defendants with the motion for a default judgment. In any event, even if plaintiffs had served defendants, obtained a default judgment and thereafter sought to have a final judgment paid by MVAIC, said judgment would have to be set aside as it affects MVAIC and MVAIC would be directed to appear and answer.

The law should not be rigidly applied to create an absurd result. Certainly, judicial economy is best served in the case at bar by a framed issue hearing in the Civil Court negligence action (CCA 206 [a]). Accordingly, I would modify the order of the court below, and remand the matter for further proceedings consistent herewith.

Kassoff, P. J., and Patterson, J., concur; Aronin, J., dissents in a separate memorandum.  