| Property Hackers, LLC v Stewart Tit. Ins. Co. |
| 2012 NY Slip Op 04728 [96 AD3d 818] |
| June 13, 2012 |
| Appellate Division, Second Department |
| Property Hackers, LLC, Appellant, v Stewart TitleInsurance Company, Respondent, et al., Defendant. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Daniel G.Walsh of counsel), for respondent.
In an action, inter alia, to recover damages for breach of a title insurance policy, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County(Grays, J.), entered May 3, 2011, as granted that branch of the motion of the defendant StewartTitle Insurance Company which was for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover damages for breach of a titleinsurance policy (hereinafter the policy) issued in connection with real property located in theBronx (hereinafter the property). The Supreme Court granted that branch of the motion of thedefendant Stewart Title Insurance Company (hereinafter Stewart) which was for summaryjudgment dismissing the complaint insofar as asserted against it, concluding that the terms of thepolicy provided that the protection of title against any rights of eminent domain was expresslyexcluded from coverage unless "notice of the exercise thereof had been recorded in the publicrecords at Date of Policy," that the City of New York commenced condemnation proceedingsagainst the property after the issuance of the policy, and that the plaintiff failed to raise a triableissue of fact with regard to this exclusion, which was expressly set forth in the policy.
Title insurance insures the owner of, and other persons lawfully interested in, "real propertyand chattels real against loss by reason of defective titles and encumbrances and insur[es] thecorrectness of searches for all instruments, liens or charges affecting the title to such property"(Insurance Law § 1113 [a] [18]; see L. Smirlock Realty Corp. v Title Guar. Co., 52NY2d 179 [1981]; Logan v Barretto, 251 AD2d 552 [1998]; Citibank vCommonwealth Land Tit. Ins. Co., 228 AD2d 635, 636 [1996]). Liability of the title insurerto its insured is essentially based on contract law and, as such, " 'is governed and limited byagreements, terms, conditions and provisions contained in the title insurance policy' "(Citibank v Commonwealth Land Tit. Ins. Co., 228 AD2d at 637, quoting 5A Warren'sWeed, New York Real Property § 1.03 [6], at 15 [4th ed]).[*2]
Here, the Supreme Court properly granted Stewart'smotion for summary judgment dismissing the complaint insofar as asserted against it. Stewartmet its prima facie burden of establishing its entitlement to judgment as a matter of law bydemonstrating that the plaintiff's claim of coverage fell within the exclusions of the policy. Inopposition, the plaintiff failed to raise a triable issue of fact (see St. Luke's Pentecostal Church, Inc. v Stewart Tit. Ins. Co., 37 AD3d702 [2007]). Florio, J.P., Balkin, Chambers and Cohen, JJ., concur.