| 47 Mamaroneck Ave. Corp. v Hartford Fire Ins. Co. |
| 2008 NY Slip Op 03585 [50 AD3d 952] |
| April 22, 2008 |
| Appellate Division, Second Department |
| 47 Mamaroneck Avenue Corporation et al.,Appellants, v Hartford Fire Insurance Company et al.,Respondents. |
—[*1] Paul I. Marx, White Plains, N.Y., for respondents.
In an action, inter alia, for a judgment declaring that the defendants are obligated to pay thecosts of defending an underlying action brought in the United States District Court, SouthernDistrict of New York, entitled Rent-A-Center, Inc. v 47 Mamaroneck Avenue Corporationand Timothy Engel, docket No. 2002 Civ. 0213 (CM), the plaintiffs appeal from an order ofthe Supreme Court, Westchester County (Rudolph, J.), entered November 30, 2006, whichgranted the defendants' motion for summary judgment declaring that the disclaimer of insurancecoverage issued to them in the underlying action was valid and proper, and denied their crossmotion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Westchester County, for the entry of a judgment declaring that the disclaimer of insurancecoverage issued to the plaintiffs in the underlying action entitled Rent-A-Center, Inc. v 47Mamaroneck Avenue Corporation and Timothy Engel, in the United States District Court,Southern District of New York, under docket No. 2002 Civ. 0213 (CM) was valid and proper.
In 2000 the plaintiff 47 Mamaroneck Avenue Corporation leased property to Rent-A-Center,Inc. (hereinafter RAC). In January 2002 RAC commenced the underlying action in the UnitedStates District Court for the Southern District of New York, alleging, inter alia, that 47Mamaroneck Avenue Corporation and its president Timothy Engel, "embarked on a plan ofharassment and coercion with the intention of causing RAC to terminate its leasehold," whichincluded[*2]"[t]respassing upon [RAC's] premises and interferingwith RAC's business by appearing, unannounced, accompanied by Fire Department personneland the City Building Inspector . . . to solicit or elicit non-existent fire codeviolations." On December 18, 2003 a decision was rendered in the underlying action, amongother things, dismissing RAC's claims sounding in tort.
In the instant action, the plaintiffs seek to recover from the defendant insurance carriers thecosts of defending the underlying action. In the order appealed from, the Supreme Courtconcluded that there was "no coverage under the policy of insurance for the underlying action,"and therefore, there was no duty to defend.
On appeal, the plaintiffs argue that the allegations of wrongful eviction and/or wrongful entrywere covered under the "personal and advertising injury" provision of the policy for claims thatthe insured committed various offenses including the "wrongful eviction from, wrongful entryinto, or invasion of the right of private occupancy of a room, dwelling or premises that aperson occupies, committed by or on behalf of its owner, landlord or lessor" (emphasisadded).
Although the term "person" is not defined in the policy, the definition of "personal andadvertising injury" in the policy distinguishes between "person" and "organization;" defamationof a "person or organization" is included in the definition, while the wrongful eviction andwrongful entry is limited to "the right of private occupancy of a room, dwelling or premises that aperson occupies" (emphasis added). Since RAC was not a natural person, any invasion ofits leasehold was not covered by the definition of "personal and advertising injury" (seeStonelight Tile, Inc. v California Ins. Guar. Assn., 150 Cal App 4th 19, 58 Cal Rptr 3d 74[2007]; Mirpad, LLC v California Ins. Guar. Assn., 132 Cal App 4th 1058, 34 Cal Rptr3d 136 [2005]; Supreme Laundry Servs. v Hartford Cas. Ins. Co., 2007 WL 839991 [NDIll], 2007 US Dist LEXIS 18134 [ND Ill 2007]).
"A disclaimer is unnecessary when a claim does not fall within the coverage terms of aninsurance policy" (Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648 [2001]; see Zaccari v Progressive Northwestern Ins.Co., 35 AD3d 597, 599 [2006]). Since the claims in the underlying action were notcovered by the policy, no disclaimer was required. In any event, the requirement in InsuranceLaw § 3420 (d) that a written notice of disclaimer shall be given "as soon as is reasonablypossible" only applies to claims arising from "death or bodily injury," which are not at issue inthis case (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000]).
The plaintiffs' remaining contentions either are without merit or need not be addressed inlight of our determination.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Westchester County, for entry of an appropriate judgment (see Lanza v Wagner,11[*3] NY2d 317, 334 [1962], appeal dismissed 371 US74 [1962], cert denied 371 US 901 [1962]). Lifson, J.P., Florio, Angiolillo andChambers, JJ., concur.