GUIDEONE INSURANCE COMPANY v. EVANGELICAL LUTHERAN BETHLEHEM CONGREGATIONAL CHURCH (2008)

In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to defend and indemnify the defendants Evangelical Lutheran Bethlehem Congregational Church, Bethlehem Evangelical Lutheran Church, and Bay Ridge Center for Older Adults in an underlying personal injury action commenced by the defendant Guy Coleman entitled Coleman v. Evangelical Lutheran Bethlehem Congregational Church, et al., pending in the Supreme Court, Kings County, under Index No. 11239/06, the plaintiff appeals from an order of the Supreme Court, Kings County (Held, J.), dated May 15, 2007, which, among other things, denied its motion for summary judgment.

ORDERED that the order is affirmed, with costs to the respondent Guy Coleman.

The plaintiff failed to meet its burden of establishing entitlement to judgment as a matter of law.   The plaintiff failed to support its motion for summary judgment with any competent evidence in admissible form establishing the validity of its disclaimer of coverage (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Batista v. Santiago, 25 A.D.3d 326, 807 N.Y.S.2d 340).   Accordingly, the plaintiff's motion for summary judgment was properly denied, regardless of the sufficiency of the opposition papers (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400).