236 West 40th Street Corp. v. Chicago Title Insurance

54 A.D.3d 632, 864 N.Y.S.2d 416

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 3, 2007, which granted defendant’s motion for summary judgment, unanimously affirmed, with costs.

The policy exclusion regarding the “Rights of tenants or persons in possession” unambiguously applies to the suit by plaintiff insured’s tenant, who claimed a right of first refusal based on the lease, since the dispute concerned a party in actual possession whose right was not of record (see Herbil Holding Co. v Commonwealth Land Tit. Ins. Co., 183 AD2d 219, 225 [1992]). Elaintiff failed to raise a question of fact as to untimely disclaimer, unable to produce an affidavit from a knowledgeable witness or other admissible evidence that defendant insurer had been given notice by plaintiff of the tenant’s action.

We have considered plaintiffs remaining arguments and find them unavailing. Concur—Tom, J.P., Mazzarelli, Friedman, Williams and Moskowitz, JJ.