| 100 Motor Parkway Assoc., LLC v American Motorists Ins.Co. |
| 2007 NY Slip Op 08427 [45 AD3d 550] |
| November 7, 2007 |
| Appellate Division, Second Department |
| 100 Motor Parkway Associates, LLC, et al.,Appellants, v American Motorists Insurance Company et al., Respondents, et al.,Defendant. |
—[*1] Curtis, Vasile, Devine & McElhenny, LLP, Merrick, N.Y. (Michael J. Dorry of counsel), forrespondents.
In an action for a judgment declaring that the defendants American Motorists InsuranceCompany and Lumbermens Mutual Casualty Company are obligated to defend and indemnify theplaintiffs as additional insureds in an underlying action entitled Payne v 100 Motor ParkwayAssociates, LLC, pending in the Supreme Court, Suffolk County, under index No. 03-22469,the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Spinner, J.), datedApril 3, 2006, which denied their motion for summary judgment.
Ordered that the order is affirmed, with costs.
Summary judgment should only be granted if the pleadings, together with the affidavits,show that there are no triable issues of fact (see CPLR 3212; Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; Alvarez v Prospect Hosp., 68 NY2d 320[1986]). Failure to tender sufficient evidence to eliminate any triable issues of fact requires denialof the motion, regardless of the sufficiency of the opposing papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d at 853).
Here, contrary to the appellants' contention, triable issues of fact exist, inter alia, as to thetimeliness of the "their" notice of the claim to the respondents (see White v City of New York81 NY2d 955 [1993]; SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d583, 584 [1998]). Schmidt, J.P., Santucci, Krausman and McCarthy, JJ., concur.