| Essex Ins. Co. v Laruccia Constr., Inc. |
| 2010 NY Slip Op 02089 [71 AD3d 818] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Essex Insurance Company, Appellant, v LarucciaConstruction, Inc., et al., Respondents. |
—[*1] Lawrence Van Dyke, Roslyn Heights, N.Y., for respondents.
In an action to recover unpaid insurance premiums, the plaintiff appeals from so much of anorder of the Supreme Court, Nassau County (McCarty, J.), entered May 8, 2009, as denied itsmotion for summary judgment on the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
"As with any contract, unambiguous provisions of an insurance contract must be given theirplain and ordinary meaning . . . and the interpretation of such provisions is aquestion of law for the court" (White vContinental Cas. Co., 9 NY3d 264, 267 [2007] [citation omitted]; see Sanabria vAmerican Home Assur. Co., 68 NY2d 866, 868 [1986]; Atlantic Balloon & Novelty Corp. v American Motorists Ins. Co., 62AD3d 920, 922 [2009]; NIACC,LLC v Greenwich Ins. Co., 51 AD3d 883, 884 [2008]). If the language of the insurancecontract is ambiguous, however, the parties may submit extrinsic evidence as an aid inconstruction (see State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]),and any ambiguity must be construed against the insurer as drafter of the policy (see White vContinental Cas. Co., 9 NY3d at 267; Guardian Life Ins. Co. of Am. v Schaefer, 70NY2d 888, 890 [1987]; Empire Fire &Mar. Ins. Co. v Eveready Ins. Co., 48 AD3d 406, 407 [2008]).
Here, the plaintiff insurer moved for summary judgment on its claim for unpaid premiumsunder a commercial general liability policy issued by it to the defendants (hereinafter theinsureds), contending that the manner of calculating the premium is clear and unambiguous fromthe terms of the policy. Contrary to this contention, although the policy unambiguously providesfor a "rate" of $28 and a "premium basis" of the insureds' gross sales to be determined by audit atthe end of the coverage period, the policy does not provide that the rate is to be applied to every$1,000 of gross sales, and it does not give any other explanation as to the manner in which thepremium is to be calculated. The explanation is not implicitly supplied by the amount calculatedfor the minimum deposit paid by the insureds, based upon an estimate of gross sales, since theapplication of the rate in the manner suggested by the insurer renders a different figure.
Thus, the insurer failed to establish, as a matter of law, that it properly calculated thepremium due (see St. Paul Fire & Mar. Ins. Co. v Capri Constr. Corp., 78 NY2d 1016[1991]; Safeguard [*2]Ins. Co. v Tetz & Sons, 271 AD2d516 [2000]; cf. Family Coatings v Michigan Mut. Ins. Co., 170 AD2d 816 [1991]). Theinsurer's failure to make a prima facie showing demonstrating the absence of a triable issue offact required denial of its motion for summary judgment, regardless of the sufficiency of theopposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Fisher, J.P.,Angiolillo, Leventhal and Lott, JJ., concur.