SCALIA v. EQUITABLE LIFE ASSURANCE SOCIETY OF UNITED STATES

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

Anthony SCALIA, respondent, v. EQUITABLE LIFE ASSURANCE SOCIETY OF UNITED STATES, appellant, et al., defendant.

Decided: July 26, 1999

WILLIAM C. THOMPSON, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and ANITA R. FLORIO, JJ. Windels, Marx, Davies & Ives, New York, N.Y. (Thomas J. Mulligan and Alisa Dultz of counsel), for appellant. Robert E. Koke, St. James, N.Y., for respondent.

In an action to obtain benefits pursuant to a disability income insurance policy, the defendant Equitable Life Assurance Society of United States appeals from so much of an order of the Supreme Court, Suffolk County (Hall, J.), dated October 22, 1998, as granted the plaintiff's cross motion for summary judgment on the complaint to the extent of determining that the language “loss of sight” in the subject insurance policy is ambiguous and may be interpreted either as a loss of sight in one eye or a loss of sight in both eyes.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The respondent was injured in August 1990 when a baseball bat broke and struck him in the eye.   He brought this action to obtain benefits pursuant to a disability income insurance policy issued by the appellant.   The Supreme Court found that the language “loss of sight” in the policy is ambiguous and can be interpreted either as a loss of sight in one eye or a loss of sight in both eyes.   Contrary to the appellant's contention, the subject language in the policy is reasonably susceptible to conflicting interpretations.   Given the well-established principle that any ambiguities in an insurance policy will be construed against the insurer, the drafter of the policy (see, e.g., Matter of Mostow v. State Farm Ins. Co., 88 N.Y.2d 321, 645 N.Y.S.2d 421, 668 N.E.2d 392;  Matter of Eveready Ins. Co. v. Mazza, 208 A.D.2d 725, 618 N.Y.S.2d 550;  Horowitz v. Threadneedle Ins. Co., 194 A.D.2d 589, 590, 599 N.Y.S.2d 79;  Reisman v. Coleman, 193 A.D.2d 659, 660, 598 N.Y.S.2d 12), the construction favoring the respondent prevails.   The appellant could have easily removed the ambiguity in this case by adding a few simple words to the policy (see, Silverstein v. Continental Cas. Co., 23 A.D.2d 801, 258 N.Y.S.2d 485, affd. 17 N.Y.2d 845, 271 N.Y.S.2d 282, 218 N.E.2d 323).   The law requires that it bear the consequences for failing to do so.   Accordingly, the determination of the Supreme Court was proper.

MEMORANDUM BY THE COURT.

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