Smith & Shapiro, P.C., Hicksville, NY (William C. Lawlor
and Arthur J. Smith of counsel), for appellants.
Hammill, O'Brien, Croutier, Dempsey, Pender &
Koehler, P.C., Syosset, NY (Anton Piotroski of counsel), for
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, for a judgment declaring that the
defendant Merchants Mutual Insurance Company is obligated to
defend and indemnify the plaintiff in an underlying personal
injury action entitled Crescimano v Ability Transmission,
Inc., pending in the Supreme Court, Suffolk County,
under Index No. 33708/12, the defendants appeal, as limited
by their brief, from so much of an order of the Supreme
Court, Suffolk County (Rouse, J.), dated March 23, 2015, as
granted that branch of the plaintiff's motion which was
for summary judgment, in effect, declaring that the defendant
Merchants Mutual Insurance Company is so obligated, and
denied their cross motion for summary judgment dismissing the
that the order is affirmed insofar as appealed from, with
costs, and the matter is remitted to the Supreme Court,
Suffolk County, for the entry of a judgment declaring that
the defendant Merchants Mutual Insurance Company is obligated
to defend and indemnify the plaintiff in the underlying
personal injury action.
2012, Susan Crescimano allegedly was injured when she tripped
and fell in a pothole in the parking lot of John's
Transmission, Inc. (hereinafter John's), which leased the
premises from Ability Transmission, Inc. (hereinafter
Ability). Crescimano then commenced a personal injury action
against Ability and others (hereinafter the underlying
had purchased insurance from Merchants Mutual Insurance
Company (hereinafter Merchants), which named Ability as an
additional insured. Ability sought defense and
indemnification in the underlying action from Merchants.
Merchants purported to disclaim coverage by letter dated June
28, 2012, and Ability thereafter commenced this action, inter
alia, for a judgment declaring that Merchants was obligated
to defend and indemnify it in the underlying action.
moved for summary judgment on the complaint, and Merchants
and John's cross-moved for summary judgment dismissing
the complaint. The Supreme Court, inter alia, granted that
branch of Ability's motion which was, in effect, for
summary judgment declaring that Merchants was obligated to
defend and indemnify it in the underlying action, and denied
the cross motion. Merchants and John's appeal.
insurer disclaims coverage for death or bodily injury arising
out of an accident, "the notice of disclaimer must
promptly apprise the claimant with a high degree of
specificity of the ground or grounds on which the disclaimer
is predicated" (General Acc. Ins. Group v
Cirucci, 46 N.Y.2d 862, 864; see Insurance Law
§ 3420[d]). "An insurer's justification for
denying coverage is strictly limited to the ground stated in
the notice of disclaimer" (Shell v Fireman's
Fund Ins. Co., 17 A.D.3d 444, 446; see Adames v
Nationwide Mut. Fire Ins. Co., 55 A.D.3d 513, 515).
"Thus, an insurer waives any ground for denying coverage
that is not specifically asserted in its notice of
disclaimer, even if that ground would otherwise have
merit" (Adames v Nationwide Mut. Fire Ins. Co.,
55 A.D.3d at 515).
disclaimer letter, Merchants stated, in relevant part, that
Ability was not named as an additional insured under the
insurance policy, a statement that was factually incorrect.
Contrary to Merchants' contention, the exclusion upon
which Merchants now relies was not mentioned in its
disclaimer letter and, therefore, any argument based on that
exclusion has been waived (see id.).
remaining contentions of Merchants and John's are without
Merchants and John's failed to establish their prima
facie entitlement to judgment as a matter of law. Therefore,
the Supreme Court properly denied their cross motion
regardless of the sufficiency of Ability's opposition
papers (see Winegrad v New York Univ. Med. Ctr., 64
N.Y.2d 851, 853). Conversely, Ability established its prima
facie entitlement to judgment as a matter of law. In
opposition, Merchants and John's failed to raise a
triable issue of fact (see BRP Const. Group, LLC v
Greenwich Ins. Co., 106 A.D.3d 680; Medrano v State
Farm Fire & Cas. Co., 54 A.D.3d 662).
the complaint asserts a cause of action for a declaratory
judgment, we remit the matter to the Supreme Court, Suffolk
County, for the entry of a judgment declaring that Merchants
is obligated to defend and indemnify Ability in the
underlying action in accordance with the terms of the subject
insurance policy (see Lanza ...