Romolo Ventura, Appellant, v. Northern Assurance Company of America, c/o Commercial Union Insurance Co., Respondent

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted judgment declaring that the automobile insurance policy issued by defendant to plaintiff does not provide coverage for plaintiffs accident that occurred on November 13, 1991. Procedurally, however, the court should not have dismissed the complaint (see, Tumminello v Tumminello, 204 AD2d 1067). Therefore, we modify the judgment by denying in part defendant’s motion and reinstating the complaint. (Appeal from Judgment of Supreme Court, Oneida County, Grow, J. — Declaratory Judgment.) Present — Pine, J. P., Fallon, Callahan, Doerr and Davis, JJ.