Michael Chiarello, an infant, by his mother and natural guardian, Marianne Chiarello, et al., plaintiffs-respondents,
Frank Rio, et al., defendants third-party plaintiffs-appellants; Encompass Insurance Company of America, third-party defendant-respondent. Index No. 20512/10
Dandeneau & Lott, Melville, NY (Gerald V. Dandeneau of
counsel), for defendants third-party plaintiffs-appellants.
Spellman Barrett, LLP, Smithtown, NY (John M. Denby of
counsel), for plaintiffs-respondents.
Feeney Law Offices, PLLC, Hauppauge, NY (Rosa M. Feeney of
counsel), for third-party defendant-respondent.
REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN SYLVIA O.
HINDS-RADIX JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
defendants third-party plaintiffs appeal from so much of an
order of the Supreme Court, Suffolk County (Molia, J.), dated
July 29, 2014, as granted that branch of the motion of the
third-party defendant which was for summary judgment
dismissing the first cause of action in the third-party
that the order is affirmed insofar as appealed from, with one
bill of costs payable to the respondents appearing separately
and filing separate briefs.
18, 2007, the infant plaintiff allegedly was injured while
operating an off-road vehicle (hereinafter the subject
vehicle) owned by the defendants third-party plaintiffs,
Frank Rio and Lori Rio (hereinafter together the defendants).
The infant plaintiff was a guest of the defendants'
teenage son at the defendants' vacation home, located in
Galway, New York. The injured plaintiff was operating the
subject vehicle in a sand pit, located on a neighboring
property, a half mile from the defendants' property, when
the vehicle tipped over, allegedly causing him to be injured.
third-party defendant, Encompass Insurance Company of America
(hereinafter Encompass), had issued a homeowners'
insurance policy that insured the defendants' vacation
home, effective as of March 13, 2007. The subject policy
excluded claims for bodily injury arising out of the use of
an insured's motorized land conveyance designed for
recreational use off public roads, which was not subject to
motor vehicle registration, if an accident involving that
vehicle did not occur on an insured location.
2010, the injured plaintiff, by his mother and natural
guardian, and his mother, individually, commenced an action
against the defendants alleging that the infant plaintiff was
injured on the defendants' premises while operating the
subject vehicle, and that the defendants were negligent with
respect to the maintenance of their property. After Encompass
disclaimed coverage to the defendants for the plaintiffs'
action on the ground that the defendants failed to timely
notify it of the occurrence, and that the occurrence fell
within certain exclusions of the policy, the defendants
commenced a third-party action against Encompass for
indemnification and to recover damages for breach of contract
as their first cause of action, and to recover damages for
negligence as their second cause of action.
answering the third-party complaint, Encompass moved for
summary judgment dismissing the third-party complaint, or, in
the alternative, for severance of the third-party action from
the main action. In an order dated January 6, 2012, the
Supreme Court denied Encompass's motion in its entirety,
and granted leave to renew upon the completion of discovery.
Encompass appealed from that order and this Court found that
the Supreme Court should have granted that branch of
Encompass's motion which was for summary judgment
dismissing the second cause of action in the third-party
complaint (see Chiarello v Rio, 101 A.D.3d 793,
discovery was completed, Encompass moved, inter alia, for
summary judgment dismissing the first cause of action in the
third-party complaint, arguing that it did not owe a duty to
defend or indemnify the defendants, among other things, on
the ground that the location where the accident occurred was
not the insured location and that the vehicle involved in the
accident was not a recreational vehicle. In opposition, the
defendants argued that the area where the accident occurred
was used by them such that it would be considered an insured
location as that term was defined by the subject policy. The
Supreme Court granted that branch of Encompass's motion
which was for summary judgment dismissing the first cause of
action in the third-party complaint, finding that Encompass
did not owe a duty to defend or indemnify the defendants with
respect to the action commenced by the plaintiffs. The
unambiguous policy provision must be accorded its plain and
ordinary meaning, and the court may not disregard the plain
meaning of the policy's language in order to find an
ambiguity where none exists" (Bassuk Bros. v Utica
First Ins. Co., 1 A.D.3d 470, 471 [internal citations
Encompass established its prima facie entitlement to judgment
as a matter of law dismissing the first cause of action by
submitting deposition testimony demonstrating that the
subject vehicle being operated by the injured plaintiff was
excluded under the terms of the subject policy, as it was not
a recreational vehicle and was not being operated on the
defendants' property at the time of the accident (see
Exeter Bldg. Corp. v Scottsdale Ins. Co.,79 A.D.3d 927,
929; Mueller v Allstate Ins. Co.,21 A.D.3d 1010,
1012). In opposition, the defendants failed to raise a
triable issue of fact (see Mueller v Allstate Ins.
Co., 21 A.D.3d at 1012). Contrary to the defendants'
contention, there was no ambiguity in the language of the
subject policy that would allow for the sand pit, situated on
a neighboring property, where the accident occurred, to be
considered an area used "in connection with" ...