Kovaleski v. Aetna Casualty & Surety Co. 188 A.D.2d 1045

Order unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Supreme Court properly rejected plaintiffs contentions that defendant Aetna Casualty and Surety Company (Aetna) waived its right to claim that its policy with defendant Jaffarian had been cancelled and that Aetna should be es-topped from cancelling Jaffarian’s policy. The court, in granting summary judgment to Aetna, erred, however, in dismissing the complaint, rather than declaring the rights of the parties (see, St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317, 325; Baier v Town of Ellery, 182 AD2d 1083). Therefore, the order is modified to declare that Aetna’s policy with defendant Jaffarian was effectively cancelled prior to the accident involving Jaffarian and plaintiff’s decedent. (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.) Present — Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.