Opinion
2013-05-1
BRP CONSTRUCTION GROUP, LLC, et al., respondents, v. GREENWICH INSURANCE COMPANY, appellant, et al., defendants.
Law Offices of Todd M. McCauley, LLC, New York, N.Y. (David F. Tavella of counsel), for appellant. Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for respondents.
Law Offices of Todd M. McCauley, LLC, New York, N.Y. (David F. Tavella of counsel), for appellant. Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for respondents.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
In an action, inter alia, for a judgment declaring that the defendant Greenwich Insurance Company is obligated to defend and indemnify the plaintiffs in an underlying action entitled Pagan v. UDC 114th Street, LLC, commenced in the Supreme Court, Kings County, under Index No. 32163/08, the defendant Greenwich Insurance Company appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated September 19, 2011, which denied its motion for summary judgment in its favor on the complaint declaring that it was not obligated to defend and indemnify the plaintiffs in the underlying action and granted the plaintiffs' cross motion for summary judgment declaring that it is so obligated.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that defendant Greenwich Insurance Company is obligated to defend and indemnify the plaintiffs in the underlying action.
In opposition to the motion of the defendant Greenwich Insurance Company (hereinafter Greenwich) for summary judgment in its favor on the complaint and in support of the plaintiffs' cross motion for summary judgment declaring that Greenwich was obligated to defend and indemnify them in the underlying action, the plaintiffs established that the notice of cancellation produced by Greenwich did not comply with the terms of the insurance policy requiring that a notice of cancellation be mailed at least 10 days before the effective date of cancellation ( see General Elec. Capital Corp. v. Volchyok, 2 A.D.3d 777, 770 N.Y.S.2d 419). In opposition to the cross motion, Greenwich failed to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Accordingly, the Supreme Court properly granted the plaintiffs' cross motion.
Moreover, the Supreme Court properly refused to consider the arguments raised for the first time in Greenwich's unauthorized sur-reply to the cross motion ( seeCPLR 2214; McMullin v. Walker, 68 A.D.3d 943, 892 N.Y.S.2d 128;Lessoff v. 26 Ct. St. Assoc., LLC, 58 A.D.3d 610, 872 N.Y.S.2d 144;Boockvor v. Fischer, 56 A.D.3d 405, 866 N.Y.S.2d 767;Graffeo v. Paciello, 46 A.D.3d 613, 848 N.Y.S.2d 264;Flores v. Stankiewicz, 35 A.D.3d 804, 827 N.Y.S.2d 281).
Since this is a declaratory judgment action, we must remit the matter to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that Greenwich is obligated to defend and indemnify the plaintiffs in the underlying action ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670,appeal dismissed371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163,cert. denied371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).