| Dichira v Nawid |
| 2015 NY Slip Op 01921 [126 AD3d 755] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Francesco Dichira, Plaintiff, v Muhammad U.Nawid, Defendant/Third-Party Plaintiff-Appellant. Countrywide Home Loan, Inc., et al.,Third-Party Defendants-Respondents, et al., Third-PartyDefendant. |
Bhatia & Associates, PLLC, New York, N.Y. (Satish K. Bhatia of counsel), fordefendant third-party plaintiff-appellant.
Zeichner Ellman & Krause LLP, New York, N.Y. (Kenneth C. Rudd and DavidS.S. Hamilton of counsel), for third-party defendant-respondent Countrywide HomeLoan, Inc.
Max W. Gershweir, New York, N.Y. (Jennifer Kotlyarsky of counsel), for third-partydefendant-respondent Tower Insurance Company.
In an action to recover damages for personal injuries and a related third-party action,the defendant third-party plaintiff appeals from so much of an order of the SupremeCourt, Kings County (Ash, J.), dated January 9, 2013, as granted that branch of themotion of the third-party defendant Countrywide Home Loan, Inc., which was forsummary judgment dismissing the third-party complaint insofar as asserted against it, andgranted that branch of the separate motion of the third-party defendant Tower InsuranceCompany which was for summary judgment dismissing the third-party complaint insofaras asserted against it and declaring that it is not obligated to defend or indemnify him inthe main action.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs,and the matter is remitted to the Supreme Court, Kings County, for the entry of ajudgment, inter alia, declaring that the third-party defendant Tower Insurance Companyis not obligated to defend or indemnify the defendant third-party plaintiff in the mainaction.
The plaintiff commenced this action against the defendant third-party plaintiffMuhammad U. Nawid to recover damages for personal injuries allegedly sustained onApril 16, 2008, when the plaintiff tripped and fell on the sidewalk in front of Nawid'sproperty. Nawid commenced this third-party action against, among others, his mortgagee,Countrywide Home Loan, Inc. (hereinafter Countrywide), and Tower InsuranceCompany (hereinafter Tower). Nawid alleged that he had obtained liability insurancecoverage for the property from Tower when he purchased the property in 2006. Healleged that after purchasing the property he made timely payments into an [*2]escrow account with Countrywide that was to be used,among other things, to pay insurance premiums, and that Countrywide had negligentlyfailed to pay the insurance premiums. The Supreme Court granted that branch ofCountrywide's motion which was for summary judgment dismissing the third-partycomplaint insofar as asserted against it, and that branch of Tower's separate motionwhich was for summary judgment dismissing the third-party complaint insofar asasserted against it and declaring that it is not obligated to defend or indemnify Nawid inthe main action. Nawid appeals.
Tower established its prima facie entitlement to judgment as a matter of law bydemonstrating that it never issued an insurance policy for the subject property, and thatits affiliate, Castlepoint Insurance Company, issued an insurance policy to Nawid for thesubject property which only became effective on June 13, 2008, two months after theaccident. "A party is not entitled to coverage if it is not named as an insured or additionalinsured on the face of the policy as of the date of the accident for which coverage issought" (York Restoration Corp.v Solty's Constr., Inc., 79 AD3d 861, 862 [2010]). In opposition, Nawid failedto raise a triable issue of fact.
Countrywide established its prima facie entitlement to judgment as a matter of law bydemonstrating that the insurance premiums that were to be paid from the escrow accountrelated to a policy of hazard insurance, not the policy of liability insurance that Nawidclaimed to have procured. Countrywide further demonstrated that the relationshipbetween it and Nawid was based entirely on a contract, that it did not have a contractualduty to maintain liability insurance on the subject property, and that it did not engage inany conduct which gave rise to a legal duty independent of the contract. "In the absenceof an agreement to the contrary, the mortgagee is under no obligation to insure themortgaged premises" (Beckford v Empire Mut. Ins. Group, 135 AD2d 228, 232[1988]). In opposition, Nawid failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted that branch of Countrywide'smotion which was for summary judgment dismissing the third-party complaint insofar asasserted against it, and that branch of Tower's separate motion which was for summaryjudgment dismissing the third-party complaint insofar as asserted against it and declaringthat it is not obligated to defend or indemnify Nawid in the main action.
Since the third-party action is, in part, a declaratory judgment action, we remit thematter to the Supreme Court, Kings County, for the entry of judgment, inter alia,declaring that Tower is not obligated to defend or indemnify Nawid in the main action(see Lanza v Wagner, 11 NY2d 317 [1962]). Dillon, J.P., Dickerson, Chambersand Roman, JJ., concur.