New York Life, Inc. v General Acc. Ins. Company: of Am. (2003 NY Slip Op 51499(U))

New York Life, Inc. v General Acc. Ins. Company of Am.

2003 NY Slip Op 51499(U)

Decided on December 4, 2003

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the Official Reports.

NEW YORK LIFE, INC., Plaintiff-Appellant,

against

GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, Defendant-Respondent.

Plaintiff appeals from an order (denominated decision and judgment) of the Civil Court, New York County, dated May 6, 2002 (Eileen N. Nadelson, J.) which, sua sponte, dismissed the complaint, and from an order of the same court and Judge dated May 31, 2002, denying plaintiff's motion which, in effect, sought to renew the aforesaid order of May 6, 2002.

Order (denominated decision and judgment) dated May 6, 2002 (Eileen N. Nadelson, J.) reversed, with $10 costs, and complaint reinstated.

Appeal from order dated May 31, 2002 (Eileen N. Nadelson, J.) dismissed, without costs, as academic.

Plaintiff sues to recover for theft-related losses under business owners policies issued by defendant. Following jury selection but before commencement of trial, the court dismissed the action "based on plaintiff's offer of proof," apparently concluding as a matter of law that the initial 1984 insurance policy excluded protection for burglary or theft. The dismissal order was procedurally infirm, since there is no CPLR provision for the dismissal of a complaint [*2]based upon a perceived inadequacy in a plaintiff's day-of-trial, pre-opening offer of proof (see, Siegel; NY Prac., § 402 [3d ed]).

Reaching the merits, insofar as meaningful appellate review of the court's peremptory merits determination is possible on this record (cf., Miller v Almadovar, 296 AD2d 444 [2002]), we find the plaintiff's offer of proof sufficient to raise a triable issue as to whether the theft-related losses here involved were covered under the insurance policies sued upon. The ambiguously drawn "Optional Coverage" provision of the 1984 insurance policy, construed against defendant, its drafter (see, Mostow v State Farm Ins. Co., 88 NY2d 321 [1996]), cannot be read to unequivocally exclude losses attributable to "Burglary and Robbery". In concluding that a trial is necessary to resolve the coverage and other issues framed by the pleadings, we take note of the admissions made by defendant concerning the coverage issue in its submissions opposing plaintiff's prior motion for partial summary judgment (see, Nationwide Mut. Ins. Co. v Erie and Niagara Ins. Assn., 249 AD2d 898, 899 (1998]).