| Ace Fire Underwriter's Ins. Co. v ITT Indus., Inc. |
| 2008 NY Slip Op 07589 [55 AD3d 346] |
| October 7, 2008 |
| Appellate Division, First Department |
| Ace Fire Underwriter's Insurance Company et al.,Appellants, v ITT Industries, Inc., et al., Defendants, and Liberty Mutual InsuranceCompany, Respondent. |
—[*1] Twomey, Hoppe & Gallanty, LLP, New York (Michael A. Twomey of counsel), forrespondent.
Order, Supreme Court, New York County (Herman Cahn, J.), entered July 17, 2007, which,insofar as appealed from in this declaratory judgment action seeking a judicial determination asto insurance coverage, granted defendant Liberty Mutual Insurance Company's motion to dismissthe complaint as against it, and directed entry of judgment in its favor, unanimously affirmed,with costs.
The motion court, after examining the submitted documentary evidence, appropriatelyconcluded that plaintiffs could not, as a matter of law, maintain a claim for contribution asagainst Liberty Mutual (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81[1999], affd 94 NY2d 659 [2000]; CPLR 3211 [a] [7]). The evidence establishes thatplaintiffs and Liberty Mutual were not coinsurers of the same risk during the same period of time(see Pennsylvania Manufacturers' Assn.Ins. Co. v Liberty Mut. Ins. Co., 39 AD3d 1161 [2007], lv denied 9 NY3d 810[2007]; HRH Constr. Corp. vCommercial Underwriters Ins. Co., 11 AD3d 321, 323 [2004], lv denied 5NY3d 705 [2005]). Concur—Tom, J.P., Friedman, Buckley, Acosta and Freedman, JJ.