Town of Brookhaven v. N.Y. Mun. Ins. Reciprocal

214 N.Y.S.3d 80

228 A.D.3d 901

TOWN OF BROOKHAVEN, appellant,

v.NEW YORK MUNICIPAL INSURANCE RECIPROCAL, et al., respondents, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 26, 2024

June 20, 2024

Rubin Paterniti Gonzalez Rizzo Kaufman, LLP, Garden City, NY (Maria Massucci of counsel), for appellant.

Congdon, Flaherty, O’Callaghan, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal to the Incorporated Village of Mastic Beach and that the defendants New York Municipal Insurance Reciprocal and Wright Risk Management are obligated to defend and indemnify the plaintiff in underlying actions entitled Young v. Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kathy G. Bergmann, J.), dated October 6, 2022. The order, in effect, denied the plaintiffs motion for summary judgment on the complaint, and granted the cross-motion of the defendants New York Municipal Insurance Reciprocal and Wright Risk Management for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment declaring that the plaintiff is not an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal to the Incorporated Village of Mastic Beach and that the defendants New York Municipal Insurance Reciprocal and Wright Risk Management are not obligated to defend and indemnify the plaintiff in underlying actions entitled Young v. Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18.

The plaintiff commenced this action for a judgment declaring that it is an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal (hereinafter NYMIR) to the Incorporated Village of Mastic Beach and that NYMIR and the defendant Wright Risk Management (hereinafter WRM) are obligated to defend and indemnify the plaintiff in regard to personal injury claims originally made against the Village but subsequently asserted against the plaintiff due to the Village’s dissolution in underlying actions entitled Young v. Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18. The plaintiff asserted that pursuant to General Municipal Law § 790, upon the Village’s dissolution, the plaintiff had assumed the Village’s debts, liabilities, and obligations and that the plaintiff became entitled to various rights held by the Village, including entitlement to the insurance coverage provided by the policy issued by NYMIR to the Village. The plaintiff also maintained that the subject insurance rights were transferred to it pursuant to certain resolutions adopted by the plaintiff in connection with the Village’s dissolution. However, the insurance policy included a provision requiring written permission from NYMIR to transfer any such rights under the policy. The plaintiff moved for summary judgment on the complaint. NYMIR and WRM (hereinafter together the moving defendants), NYMIR’s contract manager that provided insurance services for NYMIR, crossmoved for summary judgment dismissing the complaint insofar as asserted against them. By order dated October 6, 2022, the Supreme Court, in effect, denied the plaintiff's motion, and granted the moving defendants’ cross-motion. The plaintiff appeals.

[1–4] "The party claiming insurance coverage bears the burden of proving entitlement" (New York State Thruway Auth. v. Ketco, Inc., 119 A.D.3d 659, 661, 990 N.Y.S.2d 72; see National Abatement Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 33 A.D.3d 570, 571, 824 N.Y.S.2d 230). "However, a party is not entitled to coverage if it is not named as an insured or additional insured on the face of the policy as of the date of the accident for which coverage is sought" (New York State Thruway Auth. v. Ketco, Inc., 119 A.D.3d at 661, 990 N.Y.S.2d 72; see Essex Ins. Co. v. Michael Cunningham Carpentry, 74 A.D.3d 733, 733, 904 N.Y.S.2d 78). "[W]hether a third party is an additional insured under a policy is determined from the intention of the parties to the policy, as determined from the four corners of the policy itself" (Arch Specialty Ins. Co. v. RLI Ins. Co., 209 A.D.3d 812, 814, 175...