| Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co. |
| 2008 NY Slip Op 04333 [51 AD3d 649] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Pioneer Tower Owners Association, Respondent, v StateFarm Fire & Casualty Company et al., Appellants. |
—[*1] Kushnick & Associates, P.C., Melville, N.Y. (Vincent T. Pallaci, Lawrence A. Kushnick,and Craig H. Handler of counsel), for respondent.
In an action to recover damages for breach of contract and for a judgment declaring that theloss to the plaintiff's property is covered under the insurance policy issued by the defendants, thedefendants appeal from (1) an order of the Supreme Court, Nassau County (Feinman, J.), datedMarch 29, 2007, which granted the plaintiff's motion for summary judgment on the issue ofliability and denied their cross motion for summary judgment dismissing the complaint, and (2) ajudgment of the same court entered November 28, 2007, which, upon the order and upon astipulation on the issue damages, is in favor of the plaintiff and against the defendants in theprincipal sum of $122,500.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law, by adding a provision thereto declaringthat the loss to the plaintiff's property is covered under the insurance policy issued by thedefendants; as so modified, the judgment is affirmed, with costs.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241[1976]). The issues raised on the appeal from the order are brought up for review and have beenconsidered on the appeal [*2]from the judgment (seeCPLR 5501 [a] [1]).
The Supreme Court properly granted the plaintiff's motion for summary judgment on theissue of liability, and denied the defendants' cross motion for summary judgment dismissing thecomplaint. The plaintiff met its initial burden of establishing its entitlement to judgment as amatter of law by demonstrating that the insurance policy exclusions did not clearly andunambiguously apply to the loss in this case (see Lee v State Farm Fire & Cas. Co., 32 AD3d 902 [2006]; 242-44 E. 77th St., LLC v Greater N.Y.Mut. Ins. Co., 31 AD3d 100, 103-104 [2006]; Burack v Tower Ins. Co. of N.Y., 12 AD3d 167 [2004]). Inopposition, the defendants failed to raise a triable issue of fact (see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
Since this is, in part, a declaratory judgment action, the Supreme Court's judgment shouldhave included an appropriate declaration in favor of the plaintiff (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., Balkin, Dickerson and Belen, JJ., concur. [See 15 Misc 3d 1127(A), 2007 NY SlipOp 50869(U).]