Francine Henry et al., Appellants, v. Motor Vehicle Accident Indemnification Corporation et al., Respondents

Francine Henry et al., Appellants, v Motor Vehicle Accident Indemnification Corporation et al., Respondents. [744 NYS2d 10] [MAJORITY] —Order, Supreme Court, Bronx County (George Friedman, J.), entered April 25, 2001, which, inter alia, denied plaintiffs’ motion for an order directing defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) to defend and indemnify defendant Tuck, and granted MVAIC’s cross motion to dismiss the complaint as against it, unanimously affirmed, without costs. The infant plaintiff was allegedly struck by a vehicle owned by the United States Government and operated by defendant Tuck. Plaintiffs represent that they thereafter filed a notice of claim with the United States Government, which was denied because, according to the Government, Tuck was not acting within the scope of his employment at the time of the accident. Plaintiffs never commenced an action to test the validity of the claim upon which the Government’s denial was premised. The claim of noncoverage upon which this action, brought to compel the MVAIC to defend and indemnify Tuck, rests is, therefore, supported by nothing more than the Government’s bare, untested assertion that Tuck was not acting in its. behalf on the occasion of the accident. That, however, does not suffice to meet plaintiffs’ burden to establish the absence of coverage (see, Muhammad v Diaz, 198 AD2d 32). Concur—Williams, P.J., Tom, Saxe, Friedman and Marlow, JJ.