General Utilities, Inc. v. Interboro Mutual Indemnity Insurance

117 A.D.2d 647, 498 N.Y.S.2d 166, 1986 N.Y. App. Div. LEXIS 52924

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1986
• Status: Published

Opinion

—In an action for a judgment declaring the obligations of the defendant pursuant to a liability insurance contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated June 18, 1984, as granted that branch of plaintiff’s motion which was for summary judgment on its first cause of action and to dismiss certain affirmative defenses with respect to the third through fifth causes of action.

Order affirmed, insofar as appealed from, with costs.

Construing the policy strictly against the insurer (see, Breed v Insurance Co., 46 NY2d 351, 353), Special Term was correct in holding that the policy’s exclusion from coverage of "liability assumed by'the Insured under any contract or agreement” applies only to indemnification claims. Since no extrinsic evidence has been presented, summary judgment is appropriate (see, Fagnani v American Home Assur. Co., 64 NY2d 967) and it was proper for Special Term to strike those affirmative defenses which raised the exclusion clause as a bar to plaintiff’s claim. Lazer, J. P., Thompson, Rubin and Kunzeman, JJ., concur.