Nova Cas. Co. v. Peter Thomas Roth Labs, LLC

• Decision Date: 05 December 2019
• Docket Number: 10512,Index 152807/14
• Citation: 111 N.Y.S.3d 535 (Mem),178 A.D.3d 468
• Parties: NOVA CASUALTY COMPANY, Plaintiff–Respondent, v. PETER THOMAS ROTH LABS, LLC, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 468

111 N.Y.S.3d 535 (Mem)

NOVA CASUALTY COMPANY, Plaintiff–Respondent,

v.PETER THOMAS ROTH LABS, LLC, Defendant–Appellant.

10512

Index 152807/14

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

ENTERED: DECEMBER 5, 2019

Denis G. Kelly & Associates, P.C., Long Beach (Denis G. Kelly of counsel), for Appellant.

Malloy & Associates, W. Simsbury, CT (John P. Malloy of the bar of the State of Connecticut, admitted pro hac vice, of counsel), for Respondent.

Richter, J.P., Gische, Webber, Gesmer, JJ.

Order, Supreme Court, New York County (Robert R. Reed, J.), entered October 11, 2018, which granted plaintiff's motion for summary judgment declaring that plaintiff insurer owes no duty to provide flood coverage for defendant's properties in Carlstadt and Moonachie, New Jersey, unanimously affirmed, without costs.

We already held in Heartland Brewery, Inc. v. Nova Cas. Co. , 149 A.D.3d 522, 52 N.Y.S.3d 55 [1st Dept. 2017] that the provision at issue on this appeal is ambiguous. In such a situation, "the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact" ( State of New York v. Home Indem. Co. , 66 N.Y.2d 669, 671, 495 N.Y.S.2d 969, 486 N.E.2d 827 [1985] [internal citation omitted] ).

The extrinsic evidence that was presented supports plaintiff insurer's interpretation of the policy, and thus the motion court correctly declared that it had no duty to provide flood coverage. The conclusory and confusing statements by the chief operating officer during his deposition do not alter this result, and provide no basis to order a trial of the coverage claim.