Opinion
December 21, 1990
Appeal from the Supreme Court, Ontario County, Boehm, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Lawton, JJ.
Judgment reversed on the law without costs and new trial granted. Memorandum: Defendant contends that the trial court erred in charging the jury that, if any term used in the insurance policy was susceptible to more than one interpretation, the term must be construed in favor of the insured. Since the interpretation of the policy's ambiguous terms was without reference to extrinsic proof, it was for the court to determine as a matter of law (see, Hartford Acc. Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172). Here, the court properly charged the jury on the meaning of the words in the policy and then erroneously instructed the jury to resolve any ambiguity in the language of the policy against the insurer. Because that erroneous instruction may have caused the jury to place the burden of proof on the defendant, we reverse and grant a new trial.
All concur, except Callahan, J.P., who dissents and votes to affirm.