John R. Gatti et al., Plaintiffs,
Alliance Group of Western New York et al., Defendants.
Cerulli, Massare & Lembke, Rochester (Edward J. Massare of counsel), for plaintiffs.
Lustig & Brown, L. L. P., Buffalo (Katherine A. Fijal of counsel), for Alliance Group of Western New York, defendant.
Brown & Tarantino, L. L. P., Rochester (Thomas Bernacki of counsel), for Merchants Insurance Group, defendant.
Thomas A. Stander, J.
The plaintiffs, John R. Gatti and Andrew Scharney (Gatti),
submit a motion seeking an order dismissing the defendants' answers in the above-entitled action and directing partial summary judgment be entered in favor of plaintiffs and against the defendants, Alliance Group of Western New York (Alliance) and Merchants Insurance Group (Merchants), upon the ground that there is no defense to the cause of action.T he plaintiffs assert two causes of action in the complaint, one for breach of the insurance contract and the other for negligence and malpractice by the defendants.
Gatti applied for property insurance through an insurance agent, Alliance Group of Western New York. The plaintiffs completed an application and paid a $300 deposit. Thereafter they were advised by the agent that there was coverage and on February 4, 1998 plaintiffs received from Alliance a binder indicating coverage with Merchants effective January 10, 1998.  On June 30, 1998 plaintiffs sustained a loss when the roof of the building collapsed. Plaintiffs received a letter on August 8, 1998 from Merchants informing plaintiffs that Merchants did not insure the location for the loss.
Plaintiffs' Motion for Summary Judgment
The plaintiffs seek partial summary judgment against the defendants as to liability. The defendants submit extensive affidavits relating to the circumstances surrounding the issuance of this property insurance policy as between the agent and the company; however, neither defendant raises any question of fact as to plaintiffs' right to summary judgment on the issue of liability.
The plaintiffs' motion for summary judgment as to liability against both defendants is granted. The motion by Alliance for summary ...