Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 15, 2026

2023-00347, (Index No. 611895/19)

Lara J. Genovesi, J.P.

Lillian Wan

Lourdes M. Ventura

Susan Quirk, JJ.

[*1]

DECISION & ORDER

In an action to recover damages for breach of an insurance contract, the defendant Tokio Marine America Insurance Company appeals from an order of the Supreme Court, Suffolk County (Elizabeth H. Emerson, J.), dated December 15, 2022. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Tokio Marine America Insurance Company which was for summary judgment dismissing all cross-claims insofar as asserted against it, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendant Tokio Marine America Insurance Company, and one bill of costs to the defendant Tokio Marine America Insurance Company payable by the defendant Pride Machinery Sales, Inc.

In April 2019, the plaintiff entered into a contract with the defendant Pride Machinery Sales, Inc. (hereinafter Pride), to purchase a grinder. Pride agreed to arrange for the transportation of the grinder from a third-party's warehouse to the plaintiff's premises. Pride also purchased insurance coverage from the defendant Tokio Marine America Insurance Company (hereinafter TMAIC) under a marine open cargo policy, with the plaintiff as the named insured, and issued a certificate of insurance to the plaintiff.

The policy included a clause entitled "warehouse to warehouse," which specified that "[t]his insurance attaches from the time the goods insured leave the Warehouse . . . at the place named in the Policy for the commencement of the transit and continues during the ordinary course of transit . . . . Thereafter the insurance continues while goods insured are in transit and/or awaiting transit until delivered to final warehouse at the destination named in the Policy." In the certificate of insurance issued to the plaintiff, in a box reserved for "letter of credit information or additional insured notes or reference," a typewritten notation provided "machine sold from Caterpillar [*2]warehouse floor . . . to [the plaintiff's] warehouse floor . . . warehouse floor to floor."

On April 18, 2019, the grinder was delivered by truck to the plaintiff's warehouse. One of the plaintiff's employees lifted the grinder off the truck with a forklift to bring it into the plaintiff's warehouse, when the grinder fell off the forklift, allegedly sustaining irreparable damages. The plaintiff submitted a claim to TMAIC, which was denied.

The plaintiff commenced this action to recover damages for breach of an insurance contract against TMAIC and Pride. TMAIC interposed an answer and asserted, inter alia, a cross-claim against Pride for contribution and indemnification. Pride interposed an answer and asserted cross-claims against TMAIC to recover damages for bad faith and violations of the New York Prompt Payment Act.

TMAIC moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it. TMAIC relied on the policy's "warehouse to warehouse" clause, and maintained that transit had ceased, and therefore coverage had expired at the time the grinder fell. The plaintiff opposed the motion. The plaintiff relied on the "floor to floor" language in the certificate of insurance, and maintained that the language required TMAIC to provide coverage until the grinder arrived on the floor of the plaintiff's warehouse. In an order dated December 15, 2022, the Supreme Court, among other things, denied the motion. TMAIC appeals.

In determining a dispute over insurance coverage, courts look to the specific language used in the relevant policies (see J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 37 NY3d 552, 561; Jin Ming Chen v Insurance Co. of the State of Pa., 36 NY3d 133, 138; Eubanks v New York Prop. Ins. Underwriting Assn., 240 AD3d 859, 860). "As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court" (Eubanks v New York Prop. Ins. Underwriting Assn., 240 AD3d at 860 [internal quotation marks omitted]; see Birnkrant v Automobile Ins. Co. of Hartford, Conn., 206 AD3d 963, 964). "'When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment'" (Sklarz v Racer, 227 AD3d 1033, 1034-1035, quoting Hong v Renval Constr., LLC, 219 AD3d 593, 594). "An agreement is ambiguous when the agreement on its face is reasonably susceptible of more than one interpretation" (Gutt v North Am. Partners in Anesthesia, LLP, 237 AD3d 1063, 1065 [internal quotation marks omitted]; see Kay v Heavenly Events & Catering Corp., 241 AD3d 1305, 1307).

Here, contrary to TMAIC's contention, the typewritten "floor to floor" language is a term of the certificate of insurance, and prevails over pre-typed or stock provisions of the policy (see generally Birnbaum v Jamestown Mut. Ins. Co., 298 NY 305, 310-311). Although, as a general matter, a certificate of insurance is merely evidence of intent to provide insurance, and not a contract itself (see Penske Truck Leasing Co. v Home Ins. Co., 251 AD2d 478, 479), here, the plaintiff's certificate of insurance provides that "the right of a bona fide holder of this Certificate for value shall not be prejudiced by any terms of the Open Policy which are in conflict with the terms of this Certificate." Moreover, the policy itself lacks essential terms of the parties' agreement, including the identity of the insured party, the goods insured, as well as the origin and destination points of the grinder's transit, which are defined by the plaintiff's certificate of insurance. Accordingly, here, the policy and certificate of insurance are inextricably intertwined as they were formed as part of the same transaction, are related to the same subject, and effectuate the same purpose. Therefore, they must be read together as an entire insurance contract (see Nau v Vulcan Rail & Constr. Co., 286 NY 188, 197; Soho Plaza Corp. v Birnbaum, 108 AD3d 518, 521; cf. Fundamental Long Term Care Holdings, LLC v Cammeby's Funding LLC, 20 NY3d 438, 445).

Here, the plain meaning of the "floor to floor" language is not apparent. Under these circumstances, triable issues of fact exist regarding whether the occurrence was covered by the insurance contract, and TMAIC failed to demonstrate, prima facie, that it did not breach the insurance contract by failing to pay the plaintiff's claim. Accordingly, the Supreme Court correctly denied that branch of TMAIC's motion which was for summary judgment dismissing the complaint insofar as asserted against it (see generally County of Nassau v Technology Ins. Co., Inc., 174 AD3d [*3]847, 849-850; Liang v Progressive Cas. Ins. Co., 172 AD3d 696, 698-699), regardless of the sufficiency of the opposing papers.

However, the Supreme Court erred in denying that branch of TMAIC's motion which was for summary judgment dismissing all cross-claims insofar as asserted against it. TMAIC demonstrated, prima facie, that since there was no contract between Pride and TMAIC, there is no basis for Pride to recover damages for TMAIC's alleged bad faith denial or failure to promptly pay the plaintiff's claim (see Rivera v 203 Chestnut Realty Corp., 173 AD3d 1085, 1087; Pantaleo v Bellerose Senior Hous. Dev. Fund Co., Inc., 147 AD3d 777, 778). In opposition, Pride failed to raise a triable issue of fact.

The parties' remaining contentions either are without merit, need not be reached in light of our determination, or are not properly before this Court.

GENOVESI, J.P., WAN, VENTURA and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court