236 WEST 40TH STREET CORP v. CHICAGO TITLE INSURANCE COMPANY (2008)

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

236 WEST 40TH STREET CORP., Plaintiff-Appellant, v. CHICAGO TITLE INSURANCE COMPANY, Defendant-Respondent.

Decided: September 25, 2008

TOM, J.P., MAZZARELLI, FRIEDMAN, WILLIAMS, MOSKOWITZ, JJ.

Bennett D. Krasner, Atlantic Beach, for appellant. Herrick, Feinstein LLP, New York (M. Darren Traub of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 3, 2007, which granted defendant's motion for summary judgment, unanimously affirmed, with costs.

The policy exclusion regarding the “Rights of tenants or persons in possession” unambiguously applies to the suit by plaintiff insured's tenant, who claimed a right of first refusal based on the lease, since the dispute concerned a party in actual possession whose right was not of record (see Herbil Holding Co. v. Commonwealth Land Tit. Ins. Co., 183 A.D.2d 219, 225, 590 N.Y.S.2d 512 [1992] ). Plaintiff failed to raise a question of fact as to untimely disclaimer, unable to produce an affidavit from a knowledgeable witness or other admissible evidence that defendant insurer had been given notice by plaintiff of the tenant's action.

We have considered plaintiff's remaining arguments and find them unavailing.

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