| Serrano v Republic Ins. |
| 2008 NY Slip Op 01523 [48 AD3d 665] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Yamlett Serrano et al., Appellants, v Republic Insurance,Respondent, et al., Defendants. |
—[*1] Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. (Frank Simeone and Maurice J. Recchiaof counsel), for respondent.
In a consolidated action to recover damages for personal injuries, etc., and for a judgmentdeclaring that the defendant Republic Insurance is obligated to defend and indemnify thedefendant Jose Peixoto, Jr., in the personal injury action, the plaintiffs appeal from a judgment ofthe Supreme Court, Westchester County (Nicolai, J.), dated January 9, 2007, which, upon anorder of the same court entered December 20, 2006, denying their motion for summary judgmenton the complaint insofar as asserted against the defendant Republic Insurance and granting thecross motion of the defendant Republic Insurance for summary judgment, dismissed thecomplaint insofar as asserted against that defendant.
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereofdismissing the complaint insofar as asserted against the defendant Republic Insurance andsubstituting therefor a provision declaring that Republic Insurance is not obligated to defend andindemnify Jose Peixoto, Jr., in the personal injury action, and (2) by adding a provision theretosevering the action as to the remaining defendants; as so modified, the judgment is affirmed, withcosts.
"The duty of an insurer to defend its insured arises whenever the allegations within the fourcorners of the underlying complaint potentially give rise to a covered claim" (Physicians'Reciprocal Insurers v Loeb, 291 AD2d 541, 542 [2002]; see Belsito v State Farm Mut. Ins. Co., 27 AD3d 502 [2006]). [*2]The duty to indemnify requires a determination that the insured isliable for a loss that is covered by the policy (see Servidone Constr. Corp. v Security Ins. Co.of Hartford, 64 NY2d 419 [1985]). Here, on their motion for summary judgment, theplaintiffs did not meet their prima facie burden of establishing that the allegations made in theunderlying complaint potentially gave rise to a claim covered by the insurance policy at issue.Consequently, the Supreme Court properly denied their motion for summary judgment (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). The Supreme Court also properly granted the cross motionof Republic Insurance (hereinafter Republic) for summary judgment because Republicestablished, prima facie, that the allegations made in the underlying complaint did not potentiallygive rise to a claim covered by the policy (see Belsito v State Farm Mut. Ins. Co., 27AD3d at 503), and the plaintiffs did not raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 563 [1980]; Belsito v State Farm Mut. Ins. Co., 27 AD3dat 503).
Since this is, in part, a declaratory judgment action, the Supreme Court should not havedismissed the complaint insofar as asserted against Republic, but should have included anappropriate declaration in favor of Republic. Accordingly, we modify the judgment and add sucha declaration (see 200 Genesee St. Corp.v City of Utica, 6 NY3d 761, 762 [2006]; Lanza v Wagner, 11 NY2d 317, 334[1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).Spolzino, J.P., Miller, Dillon and McCarthy, JJ., concur.