Five Towns Nissan, LLC v Universal Underwriters Ins. Co.

Five Towns Nissan, LLC v Universal Underwriters Ins. Co. 2016 NY Slip Op 00016 Decided on January 5, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 5, 2016
Friedman, J.P., Sweeny, Saxe, Moskowitz, JJ.
16535 651164/13

[*1] Five Towns Nissan, LLC, Plaintiff-Appellant,

v

Universal Underwriters Insurance Company, Defendant-Respondent, Tower National Insurance Company, et al., Defendants.

McCarter & English, LLP, New York (Jeffrey M. Alfano of counsel), for appellant.

Robinson & Cole LLP, New York (Thomas J. Donlon of counsel), for respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 6, 2014, which denied plaintiff's motion for partial summary judgment against defendant Universal Underwriters Insurance Company, and granted Universal's oral cross motion for summary judgment dismissing the breach of contract cause of action against it, unanimously affirmed, with costs.

The motion court correctly applied the unlimited aggregate deductible set forth in policy endorsement no. 001, rejecting plaintiff's contention that the limited deductible set forth in the certificate insurance governed. The certificate was not proof of insurance and contained a broad disclaimer that it was a contract or conferred any rights on the certificate holder (see Buccini v 1568 Broadway Assoc ., 250 AD2d 466, 469 [1st Dept 1998]). Under the circumstances, assuming the argument is properly raised at this juncture, nor is the insurer estopped from denying the effectiveness of the deductible set forth in the certificate, as the disclaimer renders plaintiff's claimed reliance on the certificate unreasonable (cf. Bucon, Inc. v Pennsylvania Mfg. Assn. Ins. Co. , 151 AD2d 207, 210 [3d Dept 1989]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 5, 2016

CLERK