Civil Procedure · MBE-tested
Progressive Casualty Insurance Company, Respondent, v. Allstate Insurance Company, Appellant
191 A.D.2d 955595 N.Y.S.2d 144·New York Supreme Court, Appellate Division·1993·NY
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Opinion
Fourth Department,
March, 1993
(March 12, 1993)
Progressive Casualty Insurance Company, Respondent, v Allstate Insurance Company, Appellant.
[595 NYS2d 144]
[MAJORITY]
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The court erred in granting plaintiff's motion for summary judgment but properly denied defendant’s cross motion for summary judgment. Each party sought a declaration that the other’s insurance policy coverage was primary. That determination, however, cannot be made without a review of both policies, and only defendant’s policy is in the record. (Appeal from Order of Supreme Court, Erie County, Joslin, J. — Declaratory Judgment.) Present — Callahan, J. P., Pine, Lawton, Boehm and Fallon, JJ.