SLC Consultants/Constructors, Inc. v. Michigan Mutual Insurance

245 A.D.2d 1048, 666 N.Y.S.2d 68, 1997 N.Y. App. Div. LEXIS 13795

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1997
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting plaintiffs motion for partial summary judgment, declaring that defendant must defend plaintiff in the underlying action; that plaintiff is entitled to counsel of its choice; and that defendant must reimburse plaintiff for legal fees and costs in defending the underlying action. The commercial general liability and umbrella policies that plaintiff purchased from defendant both contain unambiguous provisions excluding from coverage all items of damage sought from plaintiff in the underlying action, wherein plaintiff was charged with negligence, breach of contract and breach of warranties (see generally, Kula v State Farm Fire & Cas. Co., 212 AD2d 16, 19, Iv dismissed in part and denied in part 87 NY2d 953). Because the causes of action in the complaint in the underlying action could not result in indemnification of plaintiff under the provisions of the two policies, defendant is not required to provide a defense to plaintiff in that action (see, Schiff Assocs. v Flack, 51 NY2d 692, 699-700).

We further conclude that the court should have granted defendant’s cross motion for summary judgment seeking a declaration that defendant is not obligated to defend or indemnify plaintiff in the underlying action. We modify the order, therefore, by denying plaintiff’s motion for partial summary judgment and granting defendant’s cross motion for summary judgment, declaring that defendant is not obligated to defend or indemnify plaintiff in the underlying action. (Appeal from Order of Supreme Court, Niagara County, Koshian, J.—Summary Judgment.) Present—Pine, J. P., Hayes, Wisner, Boehm and Fallon, JJ.