KSW Mech. Servs., Inc. v Willis of N.Y., Inc.

2009 NY Slip Op 04276 [63 AD3d 411]

June 2, 2009

Appellate Division, First Department

As corrected through Wednesday, August 5, 2009

KSW Mechanical Services, Inc.,Respondent-Appellant, v Willis of New York, Inc., Appellant-Respondent, andAmerican Home Assurance Company, Respondent-Appellant.

—[*1]Loeb & Loeb LLP, New York (David M. Satnick of counsel), for appellant-respondent.

James F. Oliviero, Long Island City, for KSW Mechanical Services, Inc.,respondent-appellant.

Law Offices of Beth Zaro Green, Brooklyn (Erika Aljens of counsel), for American HomeAssurance Company, respondent-appellant.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 1, 2008,which, to the extent appealed from, denied defendant Willis of New York's motion to dismissplaintiff's first, second and fourth causes of action and defendant American Home Assurance'smotion to dismiss the fourth cause of action, unanimously reversed, on the law, without costs,and the motions granted.

Plaintiff's fraud claims based on alleged misrepresentations regarding coverage made in aconstruction project insurance manual are not viable for lack of reasonable reliance as a matterof law in light of the manual's disclaimers stating that it provides an overview and that thepolicies alone govern coverage. Since the claims are flatly contradicted by the documentaryevidence (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999],affd 94 NY2d 659 [2000]), this is one of those rare circumstances in which summarydisposition of the issue of reasonable reliance is appropriate (cf. Brunetti v Musallam, 11 AD3d 280, 281 [2004]).Concur—Mazzarelli, J.P., Andrias, Friedman, Renwick and Freedman, JJ.