Baez v. First Liberty Insurance

95 A.D.3d 1250, 944 N.Y.S.2d 892

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2012
• Status: Published

Opinion

In an action, inter alia, to recover under an insurance policy, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), dated March 1, 2011, as, upon denying those branches of the plaintiff’s cross motion which were for summary judgment on the first and fourth causes of action, determined that the defendant’s disclaimer of coverage was untimely.

Ordered that the appeal is dismissed, with costs.

The plaintiff sought coverage under an insurance policy issued by the defendant, and when the defendant disclaimed coverage, the plaintiff commenced this action to recover under the policy. Upon denying those branches of the plaintiffs cross motion which were for summary judgment on the first and fourth causes of action, the Supreme Court, in an order dated March 1, 2011, inter alia, determined that the defendant’s disclaimer of coverage was untimely. The defendant appeals from so much of the order as made that determination. The appeal must be dismissed, however, as findings of fact and conclusions of law are not independently appealable (see Soehngen v Soehngen, 58 AD3d 829, 830 [2009]; Higgins v Higgins, 50 [2008]; Cosh v Cosh, 45 AD3d 798, 799 [2007]; Griggs v Griggs, 44 AD3d 710, 711 [2007]; ELRAC, Inc. v Belessis, 303 AD2d 445, 446 [2003]; Naar v Litwak & Co., 260 AD2d 613, 614 [1999]).

To the extent that the defendant raises an argument on appeal regarding its motion for leave to amend its answer, that motion was not addressed by the Supreme Court, and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). Angiolillo, J.P., Lott, Roman and Miller, JJ., concur.