Seneca Insurance v. P.S.M. Insurance

280 A.D.2d 662, 721 N.Y.S.2d 245, 2001 N.Y. App. Div. LEXIS 1791

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2001
• Status: Published

Opinion

—In an action for a judgment declaring that the defendants P.S.M. Insurance Company and 1620 East 2nd Condominium are obligated to provide liability insurance and to defend and indemnify the plaintiffs in an action entitled Keeshan v New Thermal Corp., pending in the Supreme Court, Kings County, under Index No. 42995/95, the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated June 18, 1999, which granted the motion of the defendants P.S.M. Insurance Company and 1620 East 2nd Condominium for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendants P.S.M. Insurance Company and 1620 East 2nd Condominium are not obligated to provide liability insurance or to defend and indemnify the plaintiff in the underlying action.

The defendants P.S.M. Insurance Company and 1620 East 2nd Condominium established their entitlement to judgment as a matter of law. The plaintiffs failed to sustain their burden of producing sufficient evidentiary proof in admissible form to raise a triable issue of fact that would warrant a trial (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendants P.S.M. Insurance Company and 1620 East 2nd Condominium (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

The plaintiffs’ remaining contentions are without merit. Santucci, J. P., Krausman, S. Miller and Smith, JJ., concur.