Opinion
Argued September 5, 2000.
October 16, 2000.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Carter, J.), dated April 19, 1999, which denied its motion for summary judgment on the first, fourth, and seventh causes of action and granted the cross motion of the defendants Michigan Mutual Insurance Company and S L; Concrete Construction Corp. for summary judgment dismissing the complaint insofar as asserted against them.
Abbate, Lawrence Worden, P.C., Melville, N.Y. (Roger B. Lawrence of counsel), for appellant.
Bartlett, McDonough, Bastone Monaghan, LLP, White Plains, N Y (Edward J. Guardaro, Jr., of counsel), for respondent Michigan Mutual Insurance Company.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
There is no merit to the plaintiff's contention that Michigan Mutual Insurance Corporation (hereinafter Michigan Mutual) owed a continuing duty to defend it in an underlying personal injury action. This court's determination on a prior appeal in the underlying personal injury action (see, Pryer v. DeMatteis Constr. Corp. 253 A.D.2d 804) placed the claimed injury outside the subject policy's coverage as a matter of law (see, Schnell v. Lester, 269 A.D.2d 520; see also, Seaboard Sur. Co. v. Gillette, Co., 64 N.Y.2d 304).
The plaintiff is not entitled to an attorney's fee from Michigan Mutual for the prosecution of the instant action (see, New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308; Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21).