CITY SCHOOL DISTRICT OF ALBANY v. GENERAL STAR NATIONAL INSURANCE COMPANY

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

CITY SCHOOL DISTRICT OF ALBANY, et al., Appellants, v. GENERAL STAR NATIONAL INSURANCE COMPANY, Respondent, et al., Defendant.

Decided: May 20, 2002

ANITA R. FLORIO, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, and HOWARD MILLER, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City, N.Y. (Rona L. Platt of counsel), for appellants. Marshall, Conway & Wright, P.C., New York, N.Y. (Christopher T. Bradley and Kenneth P. Horenstein of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the defendant General Star National Insurance Company is obligated to defend and indemnify the plaintiffs in an underlying action entitled R.W. Granger & Sons, Inc. v. City School District of Albany, New York, pending in the Supreme Court, Albany County, under Index No. 2502-96, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Parga, J.), dated June 28, 2001, which denied their motion for summary judgment and granted the cross motion of the defendant General Star National Insurance Company for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant General Star National Insurance Company is not obligated to defend and indemnify the plaintiffs in the underlying action.

 It is well settled that clear and unambiguous provisions in an insurance policy must be given their plain and ordinary meaning, “and the plain meaning of the policy's language may not be disregarded in order to find an ambiguity where none exists” (Milbin Print. v. Lumbermen's Mut. Cas. Ins. Co., 283 A.D.2d 467, 468, 724 N.Y.S.2d 464).   Here, the Supreme Court properly determined that General Star National Insurance Company (hereinafter General Star) was not obligated to defend and indemnify the plaintiffs in the underlying action.   The subject endorsement, upon which the plaintiffs relied in arguing that General Star was obligated to defend and indemnify them in the underlying action, did not provide coverage under the facts presented (see generally Lancer Ins. Co. v. Utica Natl. Ins. Group, 281 A.D.2d 461, 721 N.Y.S.2d 782).   Furthermore, the plaintiffs failed to raise a triable issue of fact that they were prejudiced by General Star's delay in disclaiming coverage (see Esseks, Hefter & Angel v. Government Empls. Ins. Co., 215 A.D.2d 430, 626 N.Y.S.2d 529).

We note that since this is a declaratory judgment action, the matter must be remitted for the entry of a judgment declaring that the defendant General Star is not obligated to defend and indemnify the plaintiffs in the underlying action (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).

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