LLJBJ Partnership v Commonwealth Land Title Insurance Company

LLJBJ Partnership v Commonwealth Land Tit. Ins. Co. 2006 NY Slip Op 04252 [29 AD3d 957] May 30, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

LLJBJ Partnership, Respondent,
v
Commonwealth Land Title Insurance Company, Appellant.

—[*1]

In an action to recover damages for breach of a title insurance policy and for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff for attorney's fees, costs, and expenses incurred in prosecuting the instant action and an underlying action entitled Flandorffer v Peter, commenced in the Supreme Court, Suffolk County, under index No. 26519/02, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated December 13, 2004, as granted those branches of the plaintiff's motion which were for partial summary judgment determining that it is obligated to defend the plaintiff in the underlying action, and to pay attorney's fees, costs, and expenses incurred in that action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The policy of title insurance at issue obligated the defendant title company to defend the plaintiff and pay its attorney's fees, costs, and expenses in an underlying action because the claimed defect in title arose from the rights of a person whose interest appeared in the chain of title, and who was not specifically excepted from coverage under the terms of the policy (see Scaglione v Commonwealth Land Tit. Ins. Co., 303 AD2d 671 [2003]; Herbil Holding Co. v Commonwealth Land Tit. Ins. Co., 183 AD2d 219, 226-227 [1992]). In response to the plaintiff's prima facie showing, the defendant title company failed to raise a triable issue of fact as to whether defects in the chain of title were specifically excluded from coverage under the terms of the title insurance policy (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310 [1984]; Throgs Neck Bagels v GA Ins. Co. of N.Y., 241 AD2d 66 [1998]). [*2]Accordingly, the Supreme Court properly granted partial summary judgment to the plaintiff, determining that the defendant title company must defend the plaintiff and pay its attorney's fees, costs, and expenses in connection with that action. Schmidt, J.P., Krausman, Mastro and Covello, JJ., concur.