LAFRAMBOISE GROUP LTD PLAINTIFF APPELLANT v. ET AL DEFENDANT

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Supreme Court, Appellate Division, Fourth Department.

LAFRAMBOISE GROUP LTD., PLAINTIFF–APPELLANT, v. COMMERCIAL UNDERWRITERS INSURANCE COMPANY, LYONS FALLS PULP & PAPER, INC., WALT WILMSHURST, BOURDON'S INSURANCE AGENCY, INC., DEFENDANTS–RESPONDENTS, ET AL., DEFENDANT.

CA 15–01113

Decided: May 06, 2016

PRESENT:  SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ. FISCHER, BESSETTE, MULDOWNEY & HUNTER, LLP, MALONE (MATTHEW H. MCARDLE OF COUNSEL), FOR PLAINTIFF–APPELLANT. SCHMITT & LASCURETTES, LLC, UTICA (WILLIAM P. SCHMITT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS WALT WILMSHURST AND BOURDON'S INSURANCE AGENCY, INC. COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (MEGAN E. GRIMSLEY OF COUNSEL), FOR DEFENDANT–RESPONDENT COMMERCIAL UNDERWRITERS INSURANCE COMPANY.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reinstating the amended complaint against defendant Commercial Underwriters Insurance Company to the extent that it seeks a declaration and granting judgment in favor of that defendant as follows:

It is ADJUDGED and DECLARED that plaintiff is not entitled to indemnification or a defense from defendant Commercial Underwriters Insurance Company in the underlying action,

and as modified the judgment is affirmed without costs.

Memorandum:  We conclude, for reasons stated in the decision at Supreme Court, that plaintiff is not entitled to the relief sought in the amended complaint against defendant Commercial Underwriters Insurance Company (CUIC) or the complaint against defendants Walt Wilmshurst and Bourdon's Insurance Agency, Inc. We note, however, that the court erred in dismissing the amended complaint against CUIC to the extent that it seeks declaratory relief rather than declaring the rights of the parties (see Pless v. Town of Royalton, 185 A.D.2d 659, 660, affd 81 N.Y.2d 1047;  see also Teague v Automobile Ins. Co. of Hartford, Conn., 71 AD3d 1584, 1586;  Ward v. County of Allegany, 34 AD3d 1288, 1289).  We therefore modify the judgment accordingly, and we grant judgment declaring that plaintiff is not entitled to indemnification or a defense from CUIC in the underlying action.

Frances E. Cafarell

Clerk of the Court