Wright v. Evanston Insurance

Appellate Division of the Supreme Court of New York

Wright v. Evanston Insurance

14 A.D.3d 505, 788 N.Y.S.2d 416, 2005 N.Y. App. Div. LEXIS 189

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 10, 2005

StatusPublished

Cited by2 cases

This text of 14 A.D.3d 505 (Wright v. Evanston Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wright v. Evanston Insurance, 14 A.D.3d 505, 788 N.Y.S.2d 416, 2005 N.Y. App. Div. LEXIS 189 (N.Y. Ct. App. 2005).

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Opinion

In an action for a judgment declaring that the defendant Evanston Insurance Company is obligated to indemnify the defendant Freeport Hudson Anglers, Inc., in an underlying personal injury and wrongful death action entitled Toni Wright, as Administratrix of the Estate of Robert A. Wright v Freeport Hudson Anglers, Inc., pending in the Supreme Court, Nassau County, under index No. 014164/02, the defendant Evanston Insurance Company appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated September 12, 2003, which denied its motion pursuant to CELR 3211 (a) (1) and (7) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The documentary evidence submitted in support of the motion of the defendant Evanston Insurance Company (hereinafter Evanston) to dismiss the complaint failed to resolve all factual issues and conclusively dispose of the plaintiffs claims as a matter of law. Accordingly, the Supreme Court correctly denied that branch of its motion which was to dismiss the complaint pursuant to CELR 3211 (a) (1) (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Klein v Gutman, 12 AD3d 348 [2004]).

The documentary evidence submitted by Evanston failed to establish by “clear and unmistakable language” capable of “no [506]*506other reasonable interpretation” that an exclusion applies to negate coverage for the underlying incident (Continental Cas. Co. v Rapid-Am. Corp., 80 NY2d 640, 652 [1993]; see Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003]). The ambiguous and conflicting provisions of the policy presented to the Supreme Court for review must be construed against the insurer (see Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888, 890 [1987]; Matter of KSI Rockville v Eichengrun, 305 AD2d 681, 682 [2003]). Moreover, in light of the additional premium paid by the insured, the interpretation advanced by Evanston would render the coverage illusory, a result which the public policy of this state cannot abide (see Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 362 [1974]; Matter of Nationwide Mut. Ins. Co. v Davis, 195 AD2d 561, 562 [1993]).

Evanston’s remaining contentions are without merit. H. Miller, J.P., Crane, Spolzino and Skelos, JJ., concur.

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In an action for a judgment declaring that the defendant Evanston Insurance Company is obligated to indemnify the defendant Freeport Hudson Anglers, Inc., in an underlying personal injury and wrongful death action entitled Toni Wright, as Administratrix of the Estate of Robert A. Wright v Freeport Hudson Anglers, Inc., pending in the Supreme Court, Nassau County, under index No. 014164/02, the defendant Evanston Insurance Company appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated September 12, 2003, which denied its motion pursuant to CELR 3211 (a) (1) and (7) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The documentary evidence submitted in support of the motion of the defendant Evanston Insurance Company (hereinafter Evanston) to dismiss the complaint failed to resolve all factual issues and conclusively dispose of the plaintiffs claims as a matter of law. Accordingly, the Supreme Court correctly denied that branch of its motion which was to dismiss the complaint pursuant to CELR 3211 (a) (1) (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Klein v Gutman, 12 AD3d 348 [2004]).

The documentary evidence submitted by Evanston failed to establish by “clear and unmistakable language” capable of “no [506]*506other reasonable interpretation” that an exclusion applies to negate coverage for the underlying incident (Continental Cas. Co. v Rapid-Am. Corp., 80 NY2d 640, 652 [1993]; see Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003]). The ambiguous and conflicting provisions of the policy presented to the Supreme Court for review must be construed against the insurer (see Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888, 890 [1987]; Matter of KSI Rockville v Eichengrun, 305 AD2d 681, 682 [2003]). Moreover, in light of the additional premium paid by the insured, the interpretation advanced by Evanston would render the coverage illusory, a result which the public policy of this state cannot abide (see Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 362 [1974]; Matter of Nationwide Mut. Ins. Co. v Davis, 195 AD2d 561, 562 [1993]).

Evanston’s remaining contentions are without merit. H. Miller, J.P., Crane, Spolzino and Skelos, JJ., concur.

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Bluebook (online)

14 A.D.3d 505, 788 N.Y.S.2d 416, 2005 N.Y. App. Div. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-evanston-insurance-nyappdiv-2005.

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