| NIACC, LLC v Greenwich Ins. Co. |
| 2008 NY Slip Op 04665 [51 AD3d 883] |
| May 20, 2008 |
| Appellate Division, Second Department |
| NIACC, LLC, et al., Respondents, v Greenwich InsuranceCompany, Appellant. |
—[*1] T. Kevin Murtha & Associates, P.C., Westbury, N.Y. (William Bird III of counsel), forrespondents.
In an action to recover damages for breach of an insurance contract, the defendant appealsfrom an order of the Supreme Court, Nassau County (Galasso, J.), entered April 9, 2007, whichdenied its motion for summary judgment dismissing the complaint and granted the plaintiffs'cross motion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs.
The unambiguous terms of an insurance contract must be accorded their plain and ordinarymeaning (see Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996];Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]; Toyota Motor CreditCorp. v Felton, 305 AD2d 582, 583 [2003]). Any ambiguity, however, must be construedagainst the insurer as the drafter of the policy (see Guardian Life Ins. Co. of Am. vSchaefer, 70 NY2d 888, 890 [1987]; Commercial Union Ins. Co. v Liberty Mut. Ins. Co., 36 AD3d 645[2007]; Matter of Eveready Ins. Co. v Farrell, 304 AD2d 830, 831 [2003]). Whether ornot a provision in an insurance policy is ambiguous is a question of law for the court todetermine (see General Elec. CapitalCorp. v Volchyok, 2 AD3d 777, 778 [2003]; Atlantic Mut. Ins. Co. v Terk Tech.Corp., 309 AD2d 22, 28 [2003]). "The test for ambiguity is whether the language in theinsurance contract is 'susceptible of two reasonable interpretations' " (MDW Enters. v CNAIns. Co., 4 AD3d 338, 340-341 [2004], quoting State of New York v Home Indem. Co.,66 NY2d 669, 671 [1985]). The focus of the test is on "the reasonable expectations of theaverage insured upon reading the policy" (Penna [*2]v Federal Ins. Co., 28 AD3d731, 732 [2006], quoting Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321,326-327 [1996]; see Butler v New York Cent. Mut. Fire Ins. Co., 274 AD2d 924,925-926 [2000]).
The Supreme Court correctly determined that certain provisions in a commercial liabilitypolicy issued by the defendant to the plaintiffs which pertained to "Loss Conditions" wereambiguous and that, construed against the defendant, the provisions required the defendant toreimburse the plaintiffs for guard services retained to protect the subject property after a fire thatwas the covered cause of loss. Contrary to the defendant's contention, the record does notestablish that, after the fire, the property was valueless as a matter of law and that there was,therefore, nothing on the site to protect from further damage (cf. Deni v General Acc. Ins. Co.of Am., 175 AD2d 605 [1991]). Accordingly, the Supreme Court did not err in denying thedefendant's motion for summary judgment dismissing the complaint and in granting the plaintiffs'cross motion for summary judgment on the complaint. Rivera, J.P., Santucci, Eng and Chambers,JJ., concur.