| Siragusa v Granite State Ins. Co. |
| 2009 NY Slip Op 06678 [65 AD3d 1216] |
| September 22, 2009 |
| Appellate Division, Second Department |
| Nicholas Siragusa, Appellant, v Granite State InsuranceCo. et al., Respondents, et al., Defendant. |
—[*1] Beth Zaro Green, Brooklyn, N.Y. (Michael J. Fleming of counsel), for respondent GraniteState Insurance Co. Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw [Dawn C. DeSimone], of counsel),for respondent York Insurance Services Group, Inc.
In an action for a judgment declaring, inter alia, that the defendant Granite State InsuranceCo. is obligated to provide supplemental uninsured/underinsured motorist benefits to JosetteSiragusa, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court,Kings County (Battaglia, J.), dated July 9, 2008, which denied his renewed motion for summaryjudgment on the complaint, granted the cross motions of the defendants Granite State InsuranceCo. and York Insurance Services Group, Inc., for summary judgment, in effect, declaring that thedefendant Granite State Insurance Co. is not obligated to provide supplementaluninsured/underinsured motorist benefits to Josette Siragusa, and declared that Josette Siragusawas not an insured under the supplemental uninsured/underinsured motorist endorsement of thepolicy issued by the defendant Granite State Insurance Co. to the defendant Guild forExceptional Children, Inc.
Ordered that the order and judgment is affirmed, with one bill of costs.
The plaintiff is the guardian of Josette Siragusa, who resides in an apartment sponsored bythe defendant Guild for Exceptional Children, Inc. (hereinafter the Guild). Josette Siragusa wascrossing the street when she was struck by a vehicle insured by State Farm Insurance Company.After State Farm Insurance Company tendered the policy limits, the plaintiff submitted a claimto the defendant Granite State Insurance Company (hereinafter Granite), for supplementaluninsured/underinsured motorist (hereinafter SUM) benefits under the policy that Granite issuedto the Guild. Five months later, the plaintiff was notified that Granite denied the claim on theground that Josette Siragusa was not an insured under the SUM endorsement to the policy.
"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][internal quotation marks omitted]). Therefore, where a claim is denied because the claimant isnot an insured under [*2]the policy, there is no statutoryobligation to provide prompt notice of the disclaimer (see Matter of Nationwide Ins. Co. vSmaller, 271 AD2d 537 [2000]; Matter of Fireman's Fund Ins. Co. v Freda, 156AD2d 364 [1989]). Accordingly, the plaintiff's argument that Granite may not assert that JosetteSiragusa is not an insured under the policy because it failed to timely disclaim on that ground iswithout merit (see Zappone v Home Ins. Co., 55 NY2d 131 [1982]).
Furthermore, the Supreme Court correctly determined that Josette Siragusa is not an insuredunder the following definition of "insured" in the SUM endorsement: "You, as the named insuredand, while residents of the same household, your spouse and the relatives of either you or yourspouse." "You" in the definition refers to the Guild, a corporation, which cannot have a spouse orrelative (see Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d 211 [1985]; Hoganv CIGNA Prop. & Cas. Cos., 216 AD2d 442 [1995]). Contrary to the plaintiff's contention,this interpretation of the SUM endorsement does not render the coverage meaningless, as theendorsement also includes, in the definition of an insured, any person in a vehicle insured forSUM benefits under the policy (see Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d211 [1985]). Josette Siragusa does not, however, fall within that definition of an insured either,since she was a pedestrian at the time of the accident. Skelos, J.P., Santucci, Balkin andLeventhal, JJ., concur.