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KSW Mechanical Services, Inc. v. Willis of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 2, 2009

KSW MECHANICAL SERVICES, INC., ETC., PLAINTIFF-RESPONDENT-APPELLANT
v.
WILLIS OF NEW YORK, INC., DEFENDANT-APPELLANT-RESPONDENT,
AMERICAN HOME ASSURANCE COMPANY, DEFENDANT-RESPONDENT-APPELLANT.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 1, 2008, which, to the extent appealed from, denied defendant Willis of New York's motion to dismiss plaintiff's first, second and fourth causes of action and defendant American Home Assurance's motion to dismiss the fourth cause of action, unanimously reversed, on the law, without costs, and the motions granted.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Andrias, Friedman, Renwick, Freedman, JJ.

604104/07

Plaintiff's fraud claims based on alleged misrepresentations regarding coverage made in a construction project insurance manual are not viable for lack of reasonable reliance as a matter of law in light of the manual's disclaimers stating that it provides an overview and that the policies alone govern coverage. Since the claims are flatly contradicted by the documentary evidence (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999], affd 94 NY2d 659 [2000]), this is one of those rare circumstances in which summary disposition of the issue of reasonable reliance is appropriate (cf. Brunetti v Musallam, 11 AD3d 280, 281 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090602

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