WRIGHT v. EVANSTON INSURANCE COMPANY (2005)

In an action for a judgment declaring that the defendant Evanston Insurance Company is obligated to indemnify the defendant Freeport Hudson Anglers, Inc., in an underlying personal injury and wrongful death action entitled Toni Wright, as Administratrix of the Estate of Robert A. Wright v. Freeport Hudson Anglers, Inc., pending in the Supreme Court, Nassau County, under Index No. 014164/02, the defendant Evanston Insurance Company appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated September 12, 2003, which denied its motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

 The documentary evidence submitted in support of the motion of the defendant Evanston Insurance Company (hereinafter Evanston) to dismiss the complaint failed to resolve all factual issues and conclusively dispose of the plaintiff's claims as a matter of law.   Accordingly, the Supreme Court correctly denied that branch of its motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) (see Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300, 303, 727 N.Y.S.2d 688, 751 N.E.2d 936;  Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Klein v. Gutman, 12 A.D.3d 417, 784 N.Y.S.2d 581).

 The documentary evidence submitted by Evanston failed to establish by “clear and unmistakable language” capable of “no other reasonable interpretation” that an exclusion applies to negate coverage for the underlying incident (Continental Cas. Co. v. Rapid-Am. Corp., 80 N.Y.2d 640, 652, 593 N.Y.S.2d 966, 609 N.E.2d 506;  see Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377, 383, 763 N.Y.S.2d 790, 795 N.E.2d 15).   The ambiguous and conflicting provisions of the policy presented to the Supreme Court for review must be construed against the insurer (see Guardian Life Ins. Co. of Am. v. Schaefer, 70 N.Y.2d 888, 890, 524 N.Y.S.2d 377, 519 N.E.2d 288;  Matter of KSI Rockville v. Eichengrun, 305 A.D.2d 681, 682, 760 N.Y.S.2d 520).   Moreover, in light of the additional premium paid by the insured, the interpretation advanced by Evanston would render the coverage illusory, a result which the public policy of this state cannot abide (see Thomas J. Lipton, Inc. v. Liberty Mut. Ins. Co., 34 N.Y.2d 356, 362, 357 N.Y.S.2d 705, 314 N.E.2d 37;  Matter of Nationwide Mut. Ins. Co. v. Davis, 195 A.D.2d 561, 562, 600 N.Y.S.2d 482).

Evanston's remaining contentions are without merit.