Opinion
2011-11-29
MOTOR PARKWAY ENTERPRISES, INC., appellant, v. LOYD KEITH FRIEDLANDER PARTNERS, LTD., et al., respondents.
Kenneth Geller, P.C., Inwood, N.Y., for appellant. Milber, Makris, Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly and Heather A. Morante of counsel), for respondents.
Kenneth Geller, P.C., Inwood, N.Y., for appellant. Milber, Makris, Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly and Heather A. Morante of counsel), for respondents.
In an action to recover damages for negligent procurement of insurance coverage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated April 16, 2010, which granted that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(1) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(1) to dismiss the complaint. The documentary evidence submitted by the defendants, including the application for insurance signed by the plaintiff's president and the resulting policy of insurance furnished by the defendants to the plaintiff, conclusively disposed ( see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Fontanetta v. John Doe 1, 73 A.D.3d 78, 83, 898 N.Y.S.2d 569) of the plaintiff's claims that the defendants procured insurance coverage in an amount other than that requested by the plaintiff ( see Sung v. Kyung Ip Hong, 254 A.D.2d 271, 272, 678 N.Y.S.2d 116). Moreover, the plaintiff is “conclusively presumed to have read and assented to the terms of the ... policy” ( Loevner v. Sullivan & Strauss Agency, Inc., 35 A.D.3d 392, 394, 825 N.Y.S.2d 145; see Portnoy v. Allstate Indem. Co., 82 A.D.3d 1196, 1198, 921 N.Y.S.2d 98; Maple House, Inc. v. Alfred F. Cypes & Co., Inc., 80 A.D.3d 672, 914 N.Y.S.2d 912; Stilianudakis v. Tower Ins. Co. of N.Y., 68 A.D.3d 973, 974, 889 N.Y.S.2d 854; Catalanotto v. Commercial Mut. Ins. Co., 285 A.D.2d 788, 790–791, 729 N.Y.S.2d 199; Rotanelli v. Madden, 172 A.D.2d 815, 569 N.Y.S.2d 187), and therefore cannot claim that it believed that it possessed greater coverage than that set forth in the policy.
The plaintiff's remaining contentions are either improperly raised for the first time on appeal or without merit.