Appellate Division of the Supreme Court of the State of New York December 2, 2004 (Smith v. New York Central Mutual Fire Insurance)

Spain, J.

Appeal from an order and judgment of the Supreme Court (Relihan, Jr., J.), entered December 16, 2003 in Broome County, which, inter alia, denied defendant’s motion for summary judgment dismissing the complaint and declared that defendant was required to defend and indemnify plaintiff in an underlying tort action.

It is undisputed that at about 10:00 p.m.