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

Decided on July 22, 2026

2024-12911, (Index No. 513094/23)

Colleen D. Duffy, J.P.

Paul Wooten

Laurence L. Love

Phillip Hom, JJ.

[*1]

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant Associated Industries Insurance Co., Inc., is obligated to defend and indemnify the plaintiffs in an underlying personal injury action entitled Murati v 2186 Atlantic, LLC, commenced in the Supreme Court, Kings County, under Index No. 535697/22, the defendants appeal from an order of the Supreme Court, Kings County (Anne J. Swern, J.), dated October 31, 2024. The order denied the defendants' motion for summary judgment dismissing the complaint and declaring that the defendant Associated Industries Insurance Co., Inc., is not obligated to defend or indemnify the plaintiffs in the underlying action.

ORDERED that the order is affirmed, with costs.

In May 2023, the plaintiffs commenced this action against the defendants, Associated Industries Insurance Co., Inc. (hereinafter Associated), and AmTrust E & S Insurances, Inc. (hereinafter AmTrust), for a judgment declaring that Associated is obligated to defend and indemnify the plaintiffs in a personal injury action entitled Murati v 2186 Atlantic, LLC, commenced in the Supreme Court, Kings County, under Index No. 535697/22 (hereinafter the underlying action), and to recover damages for breach of contract. The defendants thereafter moved for summary judgment dismissing the complaint and declaring that Associated is not obligated to defend or indemnify the plaintiffs in the underlying action. The plaintiffs opposed. In an order dated October 31, 2024, the Supreme Court denied the defendants' motion. The defendants appeal.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Failure to make this prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

"To be relieved of its duty to defend on the basis of a policy exclusion, the insurer bears the heavy burden of demonstrating that the allegations of the complaint [in the underlying [*2]action] cast the pleadings wholly within that exclusion, that the exclusion is subject to no other reasonable interpretation, and that there is no possible factual or legal basis upon which the insurer may eventually be held obligated to indemnify the insured under any policy provision" (Sammy v First Am. Tit. Ins. Co., 205 AD3d 949, 954 [internal quotation marks omitted]; see J & Z Mech./Constr. Corp. v Metropolis HVAC Contrs., Inc., 227 AD3d 1058, 1060). "Policy exclusions are to be strictly and narrowly construed and are not to be extended by interpretation or implication" (Grenadier Realty Corp. v RLI Ins. Co., 218 AD3d 751, 753 [internal quotation marks omitted]). An insurer relying on an exclusion must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case (see Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652). Any ambiguity in an exclusionary clause must be construed against the insurer (see Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398; Ramirez v United States Fid. & Guar. Co., 133 AD2d 146).

Here, the defendants failed to establish, prima facie, their entitlement to summary judgment. Contrary to the defendants' contention, they failed to establish entitlement to summary judgment dismissing the breach of contract cause of action because they did not eliminate all triable issues of fact as to the applicability of an exclusion in the subject insurance policy (see 1416 Coney Is. Realty, LLC v Wesco Ins. Co., 217 AD3d 807, 809). For the same reason, the defendants also failed to establish their entitlement to a declaration that Associated is not obligated to defend or indemnify the plaintiffs in the underlying action (see id.).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint and declaring that Associated is not obligated to defend or indemnify the plaintiffs in the underlying action, without regard to the sufficiency of the plaintiffs' opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court