| Galvan v 9519 Third Ave. Rest. Corp. |
| 2010 NY Slip Op 04739 [74 AD3d 743] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Johnny Galvan, Plaintiff, v 9519 Third Avenue RestaurantCorp. et al., Defendants, and Theresa Rocanelli et al., Defendants/Third-PartyPlaintiffs-Respondents. Greater New York Mutual Insurance Company, Third-PartyDefendant-Appellant. (And a Second Third-Party Action.) |
—[*1] Miranda Sambursky Slone Sklarin Verveniotis, LLP, Elmsford, N.Y. (Michael V. Longo ofcounsel), for defendants/third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, the third-party defendant appeals, aslimited by its notice of appeal and brief, from so much of an order of the Supreme Court, KingsCounty (Saitta, J.), dated March 31, 2009, as denied that branch of its motion which waspursuant to CPLR 3211 (a) (1) to dismiss the third-party complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the motion of the third-party defendant(hereinafter GNY), which was pursuant to CPLR 3211 (a) (1) to dismiss the third-partycomplaint. "A party seeking to dismiss pursuant to CPLR 3211 (a) (1) on the ground that itsdefense is based on documentary evidence must submit documentary evidence that resolves allfactual issues as a matter of law and conclusively disposes of the plaintiff's claim" (Elow v Svenningsen, 58 AD3d674, 675 [2009]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Martin v New York Hosp. Med. Ctr. ofQueens, 34 AD3d 650 [2006]). The documentary evidence submitted by GNY, namely,an insurance policy (hereinafter the Policy) between GNY and the defendant/second third-partydefendant, 9519 Third Avenue Restaurant Corp. (hereinafter 9519), and a lease between thethird-party plaintiffs and 9519, failed to resolve all factual issues as a matter of law and toconclusively dispose of the third-party plaintiffs' claims for a defense and indemnification fromGNY in the main action. Contrary to GNY's contention, those documents did not establish thatthe third-party plaintiffs were not intended third-party beneficiaries entitled to a defense andindemnification from GNY under the Policy (see State of New York v American Mfrs. Mut.Ins. Co., 188 AD2d 152, 155 [1993]; I.S.A. In N.J. v Effective Sec. Sys., 138 AD2d681, 682 [1988]; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 33 [1979],affd 49 NY2d 924 [1980]; cf. Binasco v Break-Away Demolition Corp., 256AD2d 291, 292 [1998]). Rivera, J.P., Florio, Angiolillo and Austin, JJ., concur.