Richner Commc'n, Inc. v. Tower Ins. Co. of N.Y.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MARK C. DILLON
• Citation: Richner Commc'n, Inc. v. Tower Ins. Co. of N.Y., 898 N.Y.S.2d 615, 72 A.D.3d 670 (N.Y. App. Div. 2010)
• Decision Date: 06 April 2010
• Parties: RICHNER COMMUNICATIONS, INC., respondent-appellant, v. TOWER INSURANCE COMPANY OF NEW YORK, appellant-respondent.

898 N.Y.S.2d 615

72 A.D.3d 670

RICHNER COMMUNICATIONS, INC., respondent-appellant,

v.TOWER INSURANCE COMPANY OF NEW YORK, appellant-respondent.

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

April 6, 2010.

Max W. Gershweir, New York, N.Y., for appellant-respondent.

Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for respondent-appellant.

MARK C. DILLON, J.P., ANITA R. FLORIO, HOWARD MILLER, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Giampetruzzi v. Richner Communications, Inc., pending in the Supreme Court, Queens County, under Index No. 12600/07, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered June 29, 2009, as denied its motion for summary judgment declaring that it is not so obligated, and the plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment.

ORDERED that the order is reversed insofar as appealed from, on the law, the defendant's motion for summary judgment is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the underlying action entitled Giampetruzzi v. Richner Communications, Inc., pending in the Supreme Court, Queens County, under Index No. 12600/07; and it is further, ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

In October 2005 Frank Giampetruzzi allegedly sustained personal injuries at certain premises located in Nassau County (hereinafter the subject premises). Giampetruzzi commenced an action (hereinafter the underlying action) in the Supreme Court, Queens County, against, among others, the plaintiff. The plaintiff sought coverage and legal representation in the underlying action from the defendant, its insurance carrier. The defendant disclaimed coverage and refused to defend the plaintiff on the ground, among others, that the subject premises were not covered under the policy. Thereafter, the plaintiff commenced the instant action, inter alia, for a judgment declaring that the defendant was obligated to defend and indemnifyit the underlying action. The defendant moved, and the plaintiff cross-moved, for summary judgment. The Supreme Court denied both the motion and the cross motion, finding the existence of triable issues of fact. We reverse the order insofar as it denied the defendant's motion for summary judgment.

"As with the construction of contracts generally, 'unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court' " ( Vigilant Ins. Co. v. Bear Stearns Cos., Inc., 10 N.Y.3d 170, 177, 855 N.Y.S.2d 45, 884 N.E.2d 1044, quoting White v. Continental Cas. Co., 9 N.Y.3d 264, 267, 848 N.Y.S.2d 603, 878 N.E.2d 1019; see Government Empls. Ins. Co. v. Kligler, 42 N.Y.2d 863, 864, 397 N.Y.S.2d 777, 366 N.E.2d 865). A policy is read as a whole and "in construing an endorsement to an insurance policy, the endorsement and the policy must be read together, and the words of the policy remain in full force and effect except as altered by the words of the endorsement" ( County of Columbia v. Continental Ins. Co., 83 N.Y.2d 618, 628, 612 N.Y.S.2d 345, 634 N.E.2d 946). "An insurance contract should not be read so that some provisions are...