| Ragins v Hospitals Ins. Co., Inc. |
| 2012 NY Slip Op 04729 [96 AD3d 819] |
| June 13, 2012 |
| Appellate Division, Second Department |
| Herzl Ragins, Respondent, v Hospitals InsuranceCompany, Inc., et al., Appellants. |
—[*1] Silverson, Pareres & Lombardi, LLP, New York, N.Y. (Joseph T. Pareres of counsel), forrespondent.
In an action to recover damages for breach of contract and, in effect, for a judgment declaringthat the defendants are obligated under an insurance policy to indemnify the plaintiff for costsand the remaining amount of unpaid interest incurred in connection with an underlying actionentitled Villanueva v Kahn, commenced in the Supreme Court, Bronx County, underindex No. 21290/00, the defendants appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Westchester County (Murphy, J.), entered June 24, 2011, as denied thosebranches of their motion which were pursuant to CPLR 3211 (a) (1) and (5), in effect, to dismissso much of the complaint as sought to recover damages for breach of the subject insurance policyand for a judgment declaring that they are not obligated to indemnify the plaintiff for costs andthe remaining amount of unpaid interest incurred in connection with the underlying action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thosebranches of the defendants' motion which were pursuant to CPLR 3211 (a) (1) and (5), in effect,to dismiss so much of the complaint as sought to recover damages for breach of the subjectinsurance policy and for a judgment declaring that they are not obligated to indemnify theplaintiff for costs and the remaining amount of unpaid interest incurred in connection with theunderlying action are granted, and the matter is remitted to the Supreme Court, WestchesterCounty, for the entry of a judgment, inter alia, declaring that the defendants are not obligated toindemnify the plaintiff for costs and the remaining amount of unpaid interest incurred inconnection with the underlying action.
In 1999, the defendants, Hospitals Insurance Company, Inc., and HANYS InsuranceCompany, Inc. (hereinafter together HIC), issued an Excess Professional Liability InsurancePolicy (hereinafter the excess policy) to the plaintiff. The policy provided coverage in excess ofan underlying professional liability policy, which had a policy limit of $1,000,000 per claimantand was issued by the nonparty Group Council Mutual Insurance Company (hereinafter GroupCouncil). Subsequently, an action entitled Villanueva v Kahn was commenced againstthe plaintiff in the Supreme Court, Bronx County (hereinafter the underlying action). In or aboutMarch 2002, Group Council became insolvent, and the Superintendent of Insurance of the Stateof New York (hereinafter [*2]the Superintendent) was appointedas Group Council's liquidator.
In March 2006, the jury in the underlying action returned a verdict against the plaintiff in theprincipal sum of $1,100,000. After the Superintendent and HIC paid $1,000,000 and $100,000,respectively, the Supreme Court in the underlying action entered an amended judgment againstthe plaintiff for costs and the accumulated interest. Thereafter, HIC paid its proportional share ofthe interest, based on that portion of the underlying judgment which it had been obligated to payunder the excess policy. The plaintiff commenced this action against HIC, alleging, among otherthings, that HIC breached the excess policy by failing to indemnify him for costs and theremaining amount of unpaid interest. Prior to answering, HIC moved, inter alia, pursuant toCPLR 3211 (a) (1) and (5), in effect, to dismiss so much of the complaint as sought to recoverdamages for breach of the subject insurance policy and for a judgment declaring that they are notobligated to indemnify the plaintiff for costs and the remaining amount of unpaid interestincurred in connection with the underlying action. The Supreme Court denied those branches ofthe motion. HIC appeals, and we reverse the order insofar as appealed from.
A party seeking relief pursuant to CPLR 3211 (a) (1) " 'on the ground that its defense isfounded upon documentary evidence . . . has the burden of submitting documentaryevidence that resolves all factual issues as a matter of law, and conclusively disposes of theplaintiff's claim' " (Flushing Sav. Bank,FSB v Siunykalimi, 94 AD3d 807, 808 [2012], quoting Mazur Bros. Realty, LLC v State of NewYork, 59 AD3d 401, 402 [2009]; see Leon v Martinez, 84 NY2d 83, 88 [1994]).Further, a motion pursuant to CPLR 3211 (a) (5) may be granted where the documentaryevidence establishes the defense of payment as a matter of law (see Stone v National Bank &Trust Co., 188 AD2d 865, 866-867 [1992]).
Contrary to the plaintiff's contention, the documentary evidence submitted by HIC, includingthe insurance policies and a check payable to the plaintiff in the underlying action, representingHIC's proportional share of the costs and interest set forth in the amended judgment, conclusivelydisposed of the plaintiff's claim that HIC failed to satisfy its obligations under the excess policy.HIC was only responsible for prejudgment interest on that portion of the underlying judgmentwhich it was obligated to pay under its policy (see generally Dingle v Prudential Prop. & Cas.Ins. Co., 85 NY2d 657 [1995]; Fama v Metropolitan Prop. & Cas. Ins. Co., 242AD2d 663 [1997]; Home Indem. Co. v Reid, 216 AD2d 530, 531 [1995]), and the excesspolicy conclusively established that HIC had no obligation to pay post-judgment interest or costs.
The parties' remaining contentions either need not be reached in light of our determination orare without merit.
Accordingly, the Supreme Court should have granted those branches of HIC's motion whichwere pursuant to CPLR 3211 (a) (1) and (5), in effect, to dismiss so much of the complaint assought to recover damages for breach of the subject insurance policy and for a judgmentdeclaring that they are not obligated to indemnify the plaintiff for costs and the remaining amountof unpaid interest incurred in connection with the underlying action.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Westchester County, for the entry of a judgment, inter alia, declaring that HIC is notobligated to indemnify the plaintiff for costs and the remaining amount of unpaid interestincurred in connection with the underlying action (see Lanza v Wagner, 11 NY2d 317[1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.