Opinion
2012-10-3
NORTHPORT LAND CORP., appellant, v. ZURICH NORTH AMERICA INSURANCE, respondent.
Nicholas J. Damadeo, P.C., Huntington, N.Y., for appellant. Clausen Miller, P.C., New York, N.Y. (Don Ray Sampen, Chicago, Illinois, pro hac vice, Christopher T. Scanlon, and Melinda S. Kollross of counsel), for respondent.
Nicholas J. Damadeo, P.C., Huntington, N.Y., for appellant. Clausen Miller, P.C., New York, N.Y. (Don Ray Sampen, Chicago, Illinois, pro hac vice, Christopher T. Scanlon, and Melinda S. Kollross of counsel), for respondent.
In an action for a judgment declaring that the defendant is obligated to pay, inter alia, the cost of the removal and replacement of certain underground storage tanks and pipes, and to defend and indemnify the plaintiff in any actions arising out of the contamination of property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated January 4, 2011, as granted the defendant's motion for summary judgment, in effect, declaring that it is not so obligated.
ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate declaratory judgment.
The Supreme Court properly granted the defendant's motion for summary judgment. The defendant established, prima facie, that the subject insurance policy did not cover the plaintiff's claims ( see generally Lancer Ins. Co. v. Whitfield, 61 A.D.3d 724, 725, 878 N.Y.S.2d 82;Fontanelli v. Hanover Ins. Co., 48 A.D.3d 413, 414, 851 N.Y.S.2d 274), and, in opposition, the plaintiff failed to raise a triable issue of fact.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Suffolk County, for the entry of an appropriate declaratory judgment ( see Lanza v. Wagner, 11 N.Y.2d 317, 229 N.Y.S.2d 380, 183 N.E.2d 670,appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163,cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).