A. Gugliotta Dev., Inc. v. First Am. Title Ins. Co. of N.Y.

• Decision Date: 04 December 2013
• Citation: 976 N.Y.S.2d 172,2013 N.Y. Slip Op. 08034,112 A.D.3d 559
• Parties: A. GUGLIOTTA DEVELOPMENT, INC., respondent, v. FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK, appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 559

976 N.Y.S.2d 172

2013 N.Y. Slip Op. 08034

A. GUGLIOTTA DEVELOPMENT, INC., respondent,

v.FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 4, 2013.

Weber Law Group, LLP (Hofheimer Gartlir & Gross, LLP, New York, N.Y. [David L. Birch], of counsel), for appellant.

Michael G. Walsh, Water Mill, N.Y. (Kelly A. Doyle of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action to recover damages for breach of a title insurance policy, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated September 18, 2012, as denied that branch of its motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint is granted.

In 2003, the defendant, First American Title Insurance Company of New York (hereinafter First American), issued a policyof title insurance in connection with the plaintiff's purchase of a nine-acre wooded parcel of land in Water Mill, New York. Among other things, the policy contained an exception referencing a survey reading, which, in turn, contained a notation regarding a trail running across the property. In 2009, after a third party withdrew from an agreement with the plaintiff to purchase the subject property, the plaintiff sent First American a notice of claim, asserting that the trail “encroaches over and upon the premises,” that the property “cannot be subdivided without preserving the trail,” and that the property cannot be conveyed “without removing the trail.” First American denied the claim, inter alia, on the ground that the policy excepts the trail from coverage.

The plaintiff subsequently commenced this action to recover damages for breach of the title insurance policy. Among other things, the complaint alleges that the trail is an insured encumbrance or defect on the property because it prevents the property from being subdivided or conveyed.

After discovery, First American moved, inter alia, for summary judgment dismissing the complaint. The plaintiff opposed the motion, arguing that the subject policy, while mentioning the trail, did not specifically and clearly except the rights of third parties or other persons over and upon the trail. The Supreme Court denied the motion.

“Construction of an unambiguous contract is a matter of law, and the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms” (Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324, 834 N.Y.S.2d 44, 865 N.E.2d 1210; see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475, 775 N.Y.S.2d 765, 807 N.E.2d 876; W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639).

“[A] policy of title insurance is a contract by which the title insurer agrees to indemnify its insured for loss occasioned by a defect in title” (L. Smirlock Realty Corp. v. Title Guar. Co., 52 N.Y.2d 179, 188, 437 N.Y.S.2d 57, 418 N.E.2d 650; see Appleby v. Chicago Tit. Ins. Co., 80 A.D.3d 546, 549, 914 N.Y.S.2d 257). “A policy of title insurance insures ‘against loss by reason of defective titles and encumbrances and insur[es] the correctness of searches for all instruments, liens or charges affecting the title to such property’ ” (Citibank v. Commonwealth Land Tit. Ins. Co., 228 A.D.2d 635, 636, 645 N.Y.S.2d 826, quoting Insurance Law § 1113[a][18] ). Since the title insurer's liability to its insured is based, in essence, on contract law, that liability is governed and limited by the agreements, terms, conditions, and provisions contained in the title insurance policy ( see Property Hackers, LLC v. Stewart Tit. Ins. Co., 96 A.D.3d 818, 819, 949 N.Y.S.2d 70; Citibank v. Commonwealth Land Tit. Ins. Co., 228 A.D.2d at 637, 645 N.Y.S.2d 826). In general, a title insurer “ ‘will be liable for hidden defects and all matters affecting title within the policy coverage and not excluded or specifically excepted from said coverage’ ” (Citibank v. Commonwealth Land Tit. Ins. Co., 228 A.D.2d at 637, 645 N.Y.S.2d 826, quoting 5A Warren's Weed, New York Real Property, Title Insurance, § 1.03[6] [4th ed.], at 15).

“An exclusion...