MIRABELLI v. MERCHANTS INSURANCE COMPANY OF NEW HAMPSHIRE

Reset A A Font size: Print

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

Robert MIRABELLI, et al., appellants, v. MERCHANTS INSURANCE COMPANY OF NEW HAMPSHIRE, etc., respondent.

Decided: October 28, 2008

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO, and DANIEL D. ANGIOLILLO, JJ. Robert J. Zysk, Patchogue, N.Y., for appellants. Feldman, Rudy, Kirby & Farquharson, P.C., Westbury, N.Y. (Gerald F. Kirby of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract and for a judgment declaring that a loss to the plaintiffs' property is covered under an insurance policy issued by the defendant, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated June 7, 2007, which granted the defendant's motion, in effect, for summary judgment dismissing the first cause of action and on the fifth cause of action declaring that the loss to the plaintiffs' property is not covered under the insurance policy issued by the defendant, and denied their cross motion, among other things, for summary judgment on the fifth cause of action declaring that the loss to their property is covered under the subject insurance policy.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the loss to the plaintiffs' property is not covered under the insurance policy issued by the defendant.

On its motion, the defendant established its entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572), by demonstrating, prima facie, that a loss to the plaintiffs' property was not covered under the subject insurance policy.   The defendant provided evidence establishing that the plaintiffs not only failed to comply with a policy provision requiring that the property have a particular type of fire alarm, but also failed to fulfill their obligations under the policy's cooperation clause (see 232 Broadway Corp. v. New York Prop. Ins. Underwriting Assn., 206 A.D.2d 419, 421, 615 N.Y.S.2d 42;  Dyno-Bite, Inc. v. Travelers Cos., 80 A.D.2d 471, 473-474, 439 N.Y.S.2d 558).   Since, in opposition, the plaintiffs failed to raise a triable issue of fact, the Supreme Court properly granted the defendant's motion (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The plaintiffs' remaining contentions either have not been reviewed (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 754-757, 697 N.Y.S.2d 866, 720 N.E.2d 86;  Bray v. Cox, 38 N.Y.2d 350, 353-355, 379 N.Y.S.2d 803, 342 N.E.2d 575), or are without merit.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the loss to the plaintiffs' property is not covered under the subject insurance policy (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

Copied to clipboard