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National Union Fire Insurance v. Pardo

Appellate Division of the Supreme Court of New York, Second Department
Oct 17, 1994
208 A.D.2d 702 (N.Y. App. Div. 1994)

Opinion

October 17, 1994

Appeal from the Supreme Court, Nassau County (Roncallo, J.).


Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff has no duty to defend or indemnify the appellants in the underlying action.

An action was commenced against, inter alia, the appellants City of Glen Cove (hereinafter the City) and the City of Glen Cove Police Department (hereinafter the Police Department) alleging that the Police Department was negligent in its handling of a report of child abuse. Prior to commencement of the action, a notice of claim had been served on the City which, in turn, was forwarded to its insurer, the plaintiff in this action. The plaintiff denied coverage based on an exclusionary clause in the insurance policy, stating that "This insurance does not apply to activities of any law enforcement personnel and/or agency." After the summons and complaint in the underlying action were forwarded to the plaintiff, it reserved its right to deny coverage, although it retained counsel to defend the action. The plaintiff then commenced this action seeking a declaration, inter alia, that it had no duty to defend or indemnify the City or the Police Department in the underlying negligence action. Thereafter, the plaintiff moved for summary judgment and the appellants cross-moved for the same relief. The Supreme Court granted the motion and denied the cross motion.

The Supreme Court properly found that the allegations in the complaint against the City and the Police Department fall within the scope of the policy's exclusionary clause, which is clear and unambiguous. It is well settled that "`[C]ourts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies' * * * and unambiguous provisions must be given their plain and ordinary meaning" (Sanabria v. American Home Assur. Co., 68 N.Y.2d 866, 868). Here, the general exclusion for law enforcement activities is clear in its meaning and, contrary to the appellants' contention, the specified exceptions to the exclusionary clause are simply carved out from the clause as distinct areas for which coverage is provided. They do not render the remainder of the insurance contract ambiguous or inconsistent.

The plaintiff's motion was not barred by the doctrines of laches or estoppel. The plaintiff timely denied coverage, reserved its rights, and commenced this declaratory judgment action.

Finally, we note that since this is a declaratory judgment action, a judgment should be entered granting declaratory relief in favor of the plaintiff (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Miller, J.P., Joy, Altman and Goldstein, JJ., concur.


Summaries of

National Union Fire Insurance v. Pardo

Appellate Division of the Supreme Court of New York, Second Department
Oct 17, 1994
208 A.D.2d 702 (N.Y. App. Div. 1994)
Case details for

National Union Fire Insurance v. Pardo

Case Details

Full title:NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 17, 1994

Citations

208 A.D.2d 702 (N.Y. App. Div. 1994)
617 N.Y.S.2d 504

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