Opinion
373 CA 20-00935
06-11-2021
George WENTWORTH and Jayne Wentworth, Plaintiffs-Appellants, v. ERIE INSURANCE COMPANY, Defendant-Respondent, et al., Defendant.
LONGSTREET & BERRY, LLP, FAYETTEVILLE (MICHAEL J. LONGSTREET OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. HURWITZ & FINE, P.C., BUFFALO (MIRNA ELEANOR MARTINEZ OF COUNSEL), FOR DEFENDANT-RESPONDENT.
LONGSTREET & BERRY, LLP, FAYETTEVILLE (MICHAEL J. LONGSTREET OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
HURWITZ & FINE, P.C., BUFFALO (MIRNA ELEANOR MARTINEZ OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the amended motion is denied, and the complaint is reinstated against defendant Erie Insurance Company.
Memorandum: Plaintiffs commenced this action seeking judgment declaring that Erie Insurance Company (defendant) is obligated to defend and indemnify plaintiffs with respect to counterclaims asserted against them in an underlying action. We agree with plaintiffs that Supreme Court erred in granting defendant's amended motion to dismiss the complaint against it based upon documentary evidence (see CPLR 3211 [a] [1] ). The documentary evidence submitted by defendant in support of the amended motion " ‘failed to resolve all factual issues and conclusively dispose of [plaintiffs’ cause of action] as a matter of law’ " ( Calabro v. General Ins. Co. of Am. , 23 A.D.3d 326, 326, 803 N.Y.S.2d 441 [2d Dept. 2005] ; see Goshen v. Mutual Life Ins. Co. of N.Y. , 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ).