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CULLEN v. NAPLES

39 A.D.2d 336 (1972)

Michael Cullen, an Infant, by Carol Cullen, His Mother, et al., Respondents, v. Francis Naples et al., Appellants, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 5, 1972.

Attorney(s) appearing for the Case

Michael Saunders (Edward H. Schiff and Harold L. Cowin of counsel), for appellants.

Simonson & Cohen; Russo, Dworkin, Taub & Agar P. C.; and Cohen & Siegel (Solomon R. Agar of counsel), for respondents.

HOPKINS, Acting P. J., and LATHAM, J., concur, with a memorandum; CHRIST and GULOTTA, JJ., dissent and vote to reverse and to remand the case to Special Term, with a memorandum.

SHAPIRO, J.

In this action for a declaratory judgment, the judgment under review adjudges that defendant Kleine, at the time of the automobile collision in question, was operating the vehicle owned by defendant Francis Naples, Sr., with the latter's implied permission and consent. The car was then in the custody of Francis Naples, Jr.

The basic claim of the appellant insurer is that it had a right to...

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