159 WEST 80TH STREET CORP v. RSI (2005)

Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered on or about February 8, 2005, which granted defendant-respondent's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff's theory appears to be that it was denied a defense in an underlying action for premises liability because of defendant's negligence in issuing a policy that did not name plaintiff as the owner of the premises.   In response to defendant's demand for a bill of particulars specifying, inter alia, the issuance date, number and period of the subject policy, plaintiff stated that the information sought was in defendant's “custody,” and further indicated that defendant had issued several policies all of which misnamed the insured, and refused to correct the policies when advised of the error on at least four occasions.   Directed to supplement this response, plaintiff responded that the original policy is in defendant's possession, and indicated that the error appeared on policies issued between 1998 and 2002, and perhaps others as well.   The motion court aptly described this response as “patently insufficient,” and went on to note that plaintiff's opposition to the motion also failed to identify the “relevant insurance policy,” or provide any additionally demanded particulars of the alleged negligence, such as the identity of defendant's representative who was advised of the error and the dates of the alleged communications.   Under the circumstances, the action was properly dismissed (CPLR 3042[d];  see Shaw v. Bronfman, 284 A.D.2d 267, 727 N.Y.S.2d 428 [2001], lv. dismissed 97 N.Y.2d 725, 740 N.Y.S.2d 697, 767 N.E.2d 154 [2002] ).