Edelman v Chubb Indem. Ins. Co.

Edelman v Chubb Indem. Ins. Co. 2007 NY Slip Op 05570 [41 AD3d 327] June 26, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Asher B. Edelman, Appellant,
v
Chubb Indemnity Insurance Company, Defendant and Third-Party Plaintiff-Appellant. Phillips de Pury & Luxembourg, Third-Party Defendant-Respondent.

—[*1] Kupferman & Kupferman, LLP, New York (Stephanie E. Kupferman of counsel), for Asher B. Edelman, appellant.

Sedgwick, Detert, Moran & Arnold, LLP, New York (Jeffrey M. Winn of counsel), for Chubb Indemnity Insurance Company, appellant.

White Fleischner & Fino, LLP, New York (Frederic R. Mindlin of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 31, 2006, which granted third-party defendant's motion for summary judgment dismissing the complaint and the third-party complaint, denied defendant and third-party plaintiff's motion for summary judgment, and denied plaintiff's cross motion for partial summary judgment against defendant and third-party plaintiff, unanimously affirmed, without costs.

This action involves insurance under a consignment agreement. The court construed the plain and ordinary meaning of the unambiguous terms and conditions of the agreement (see United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]), and properly determined that third-party defendant's insurance policy from Underwriters at Lloyd's, covering property of customers while in the company's care, custody or control, provided the necessary coverage called for in the agreement. It should be noted that plaintiff's cause of action against Phillips de Pury & Luxembourg did not include any claim of negligence, merely breach of contract.

Summary judgment was properly denied to both plaintiff and defendant Chubb Indemnity Insurance Company, plaintiff's all-risk insurer, in connection with plaintiff's claim under the policy because of questions of fact as to the cause of the damage to the subject painting (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

We have considered the parties' remaining arguments for affirmative relief and find them without merit. Concur—Sullivan, J.P., Buckley, Gonzalez, Sweeny and Kavanagh, JJ.