County of Nassau v. Michigan Mutual Insurance

276 A.D.2d 578, 714 N.Y.S.2d 886, 2000 N.Y. App. Div. LEXIS 10387

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 2000
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Carter, J.), dated April 19, 1999, which denied its motion for summary judgment on the first, fourth, and seventh causes of action and granted the cross motion of the defendants Michigan Mutual Insurance Company and S&L Concrete Construction Corp. for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

There is no merit to the plaintifff s contention that Michigan Mutual Insurance Corporation (hereinafter Michigan Mutual) owed a continuing duty to defend it in an underlying personal injury action. This Court’s determination on a prior appeal in the underlying personal injury action (see, Pryer v DeMatteis Constr. Corp., 253 AD2d 804) placed the claimed injury outside the subject policy’s coverage as a matter of law (see, Schnell v Lester, 269 AD2d 520; see also, Seaboard Sur. Co. v Gillette Co., 64 NY2d 304).

The plaintiff is not entitled to an attorney’s fee from Michigan Mutual for the prosecution of the instant action (see, New York Univ. v Continental Ins. Co., 87 NY2d 308; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21). Ritter, J. P., S. Miller, Friedmann and Florio, JJ., concur.