SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

980 

CA 13-00372 

PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, AND VALENTINO, JJ.

 

 

CONLEY & TIBBITTS PROPERTIES, LLC, 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

LEATHERSTOCKING COOPERATIVE INSURANCE COMPANY, 

DEFENDANT-RESPONDENT. 

 

GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFF-APPELLANT. 

GOZIGIAN, WASHBURN & CLINTON, COOPERSTOWN (E. W. GARO GOZIGIAN OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Oneida County (David

A. Murad, J.), entered July 11, 2012. The order denied the motion of

plaintiff for summary judgment, granted the cross motion of defendant

for summary judgment and dismissed the amended complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this breach of contract action arising from a

dispute over insurance coverage, plaintiff appeals from an order that

denied its motion for summary judgment and granted defendant’s cross

motion for summary judgment dismissing the amended complaint. We

affirm. Plaintiff obtained insurance from defendant to cover a rental

property (hereafter, building) that it owns in Oneida County. 

Although the policy covered losses caused by, inter alia, fire, it

contained an exclusion for losses or increased costs resulting

directly or indirectly from “enforcement of any code, ordinance or law

regulating the . . . repair . . . of a building,” irrespective of “any

other cause or event that contributes concurrently or in any sequence

to the loss.” 

While the policy was in effect, a fire damaged the building. 

Plaster had been disturbed while the fire was being extinguished, and

a state code required under such circumstances that an asbestos survey

be completed before any further action could be taken with respect to

the building. The survey indicated that asbestos was present, and

plaintiff obtained an estimate for the cost of removing the asbestos. 

Although defendant reimbursed plaintiff for all other parts of its

claim, it denied coverage for the cost of asbestos removal. Plaintiff

thereafter commenced this action seeking “the full amount of the

building damages and remediation of asbestos.”
-2- 980 

CA 13-00372 

“ ‘Where[, as here,] the provisions of an insurance contract are

clear and unambiguous, they must be enforced as written’ ” (Oot v Home

Ins. Co. of Ind., 244 AD2d 62, 66). Affording the unambiguous terms

in the instant insurance contract their plain and ordinary meaning

(see White v Continental Cas. Co., 9 NY3d 264, 267), we conclude that

defendant established its entitlement to judgment as a matter of law

by establishing that the policy does not provide coverage for the

increased costs sought by plaintiff (see generally Zuckerman v City of

New York, 49 NY2d 557, 562). Pursuant to the terms of the contract

exclusion, no coverage exists for increased costs caused by the

enforcement of the state code at issue here, “irrespective of any

other concurrent or subsequent contributing cause or event” (Lattimore

Rd. Surgicenter, Inc. v Merchants Group, Inc., 71 AD3d 1379, 1380).

Entered: September 27, 2013 Frances E. Cafarell

Clerk of the Court