Opinion
571107/02.
Decided May 11, 2004.
Defendant appeals from an order of the Civil Court, New York County, entered July 14, 2003 (Karen S. Smith, J.) which granted plaintiff's motion for summary judgment in the principal sum of $5,000, plus interest, costs, disbursements and severed defendant's counterclaims.
Order entered July 14, 2003 (Karen S. Smith, J.) affirmed, with $10 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. WILLIAM J. DAVIS, Justices.
Plaintiff insurer established its entitlement to summary judgment in this action to recover an unpaid deductible against its insured on a professional liability policy. Plaintiff supported its motion with the affidavit of its former assistant vice president and established with documentary evidence the issuance of the insurance policy, plaintiff's payment of a claim on the policy following claim settlement in open court and that the $5,000 deductible remained unpaid, despite due demand.
Defendant made no competent factual showing in opposition to the motion. In particular, defendant's arguments on the issue of plaintiff's waiver of the deductible are substantially similar to arguments already rejected by this Court on a prior appeal in this case in which we affirmed the dismissal of defendant's third-party action. We stated: "[Defendant appellant's] assertions of alleged oral representations by his then attorneys regarding the deductible are contradicted by his own correspondence of December 28, 2000 authorizing them to settle the claim 'within the policy limits [of] $2,000,000 with a deductible of $5,000.' Notably, the stipulation of settlement placed on the record in the malpractice litigation did not indicate that the insurer's settlement was without recourse to the deductible" (Home Ins. Co. v. Erdheim, NYLJ, April 25, 2003, at 18, col 2 [App Term, 1st Dept]). The policy itself (section G, III) also required that any waiver or change of its terms be by written endorsement.
Nor did defendant demonstrate that a determination of the motion should have been postponed on the ground that further discovery might have revealed the existence of material facts (Bailey v. New York City Tr. Auth., 270 AD2d 156, 157). Since no genuine issue of fact has been raised as to the insurer's waiver of the deductible or defendant's liability, plaintiff's motion for summary judgment was properly granted.
This constitutes the decision and order of the court.