AGCS Marine Insurance v. Scottsdale Insurance

102 A.D.3d 899, 958 N.Y.S.2d 753

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 2013
• Status: Published

Opinion

In an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs Leighton House Condominium and Cooper Square Realty, Inc., in an underlying action entitled Bonaerge v Leighton House Condominium, pending in the Supreme Court, Bronx County, under index No. 30651/09, the defendant appeals from an order of the Supreme Court, Suffolk County (Molía, J.), dated March 25, 2011, which denied its motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

To successfully move to dismiss a complaint pursuant to CPLR 3211 (a) (I), the movant must present documentary evidence that “resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim” (Nevin v Laclede Professional Prods., 273 AD2d 453, 453 [2000]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996 [2010]). In support of its motion, the defendant failed to present documentary evidence conclusively establishing a defense as a matter of law. Accordingly, the Supreme Court properly denied the defendant’s motion.

Contrary to the defendant’s contention, we do not construe certain language contained in the order appealed from as constituting a finding of fact that the insureds provided timely notice of the claim to the defendant. Rivera, J.P., Dillon, Roman and Cohen, JJ., concur.