The specific certificate of insurance requirement in the National Grange insurance policy, "Contractor's Extension Endorsement," previously quoted in this decision and cited by National Grange in support of its cross-motion for summary judgment, has been held to be ambiguous. (ErieIns. Group v National Grange Mut. Ins. Co. , 63 AD3d 1412, 1414 [3d Dept 2009]). The Appellate Division, Third Department held, at 1414, that "this provision is ambiguous" and susceptible to different interpretations.
The specific certificate of insurance requirement in the National Grange insurance policy, “Contractor's Extension Endorsement,” previously quoted in this decision and cited by National Grange in support of its cross-motion for summary judgment, has been held to be ambiguous. (Erie Ins. Group v. National Grange Mut. Ins. Co., 63 A.D.3d 1412, 1414, 883 N.Y.S.2d 601 [3d Dept 2009] ). The Appellate Division, Third Department held, at 1414, that “this provision is ambiguous” and susceptible to different interpretations.
Travelers has cited no authority for the proposition that this type of condition precedent in an insurance contract may be disregarded under New Jersey law simply on the grounds the insurance company was given the opportunity to participate in "discovery and depositions." Second, Travelers asserts that the Harleysville Endorsement is ambiguous and therefore must be construed strictly against Harleysville. Although it does not explain why it believes the Harleysville Endorsement is ambiguous, it cites a New York case,Erie Ins. Group v. Nat'l Grange Mut. Ins. Co., 883 N.Y.S.2d 601 (App. Div. 3d Dep't 2009) ("Erie"), in which the Appellate Division concluded in dicta that a similarly phrased policy was ambiguous. Analogizing to Erie, Travelers' theory of ambiguity apparently requires construing the phrase, "where a certificate of insurance showing that person or organization as an additional insured has been issued . . ."
Therefore, to the extent that refusal constituted a new determination capable of review (see Matter of Boyles v. Town Bd. of Town of Bethlehem, 278 A.D.2d 688, 691, 718 N.Y.S.2d 430 [2000] ), the attacks against it were untimely. The proceeding No. 1 petitioners cross-moved for summary judgment before Kiryas Joel and the Village Board served an answer and, having "charted their own procedural course," they will not be heard to complain that Supreme Court erred in reaching the merits of their claims (Becher v. Feller, 64 A.D.3d 672, 676–677, 884 N.Y.S.2d 83 [2009] [internal quotation marks and citation omitted]; see Erie Ins. Group v. National Grange Mut. Ins. Co., 63 A.D.3d 1412, 1414 n. 2, 883 N.Y.S.2d 601 [2009] ).
Where the facts fall short of establishing a contractual term, New York courts have enforced the literal requirements of such a term. See, e.g., Zuckerberg v. Blue Cross & Blue Shield of Greater N.Y., 108 A.D.2d 56, 487 N.Y.S.2d 595, 598 (2d Dep't 1985) (“appellate division reversed health-insurance-coverage ruling for plaintiff, which had been made on grounds that Hospital La Gloria was in substantial compliance with contractual definition of a hospital,” on grounds that Hospital La Gloria did not “constitute[ ] a hospital in accordance with contractual definition” in insurance policy), aff'd, 67 N.Y.2d 688, 499 N.Y.S.2d 920, 490 N.E.2d 839 (1986); see also Erie Ins. Grp. v. Nat'l Grange Mut. Ins. Co., 63 A.D.3d 1412, 883 N.Y.S.2d 601, 603 (3d Dep't 2009) (denying request for relief because insurance policy's definition of “additional insured” was not met); cf. Process Am., Inc. v. Cynergy Holdings, LLC, No. 12 Civ. 772(BMC), 2014 WL 3844626, at *11 (E.D.N.Y. Apr. 30, 2014) (“A termination [of a contract] that does not comply with contractual requirements is ineffective.”) (citing New Image Constr., Inc. v. TDR Enters. Inc., 74 A.D.3d 680, 905 N.Y.S.2d 56 (1st Dep't 2010)). In any event, apart from the Court's construction of the term “Offer,” to construe § 12.2 to recognize as a qualifying first offer an offer embedding a side payment to the decisionmaker would yield a commercially unreasonable interpretation.
While defendant made this motion for summary judgment before issue was joined, plaintiff failed to make a timely objection on the ground that it was premature (see CPLR 3212 [a]; Erie Ins. Group v National Grange Mut. Ins. Co., 63 AD3d 1412, 1414 n 2 [2009]; see also Roche v Claverack Coop. Ins. Co., 59 AD3d 914, 916 [2009]) and he cannot make this argument for the first time on appeal ( see Avraham v Allied Realty Corp., 8 AD3d 1079 [2004]). The inspection agreement signed by plaintiff specifically stated that the inspector did not "test heating or cooling distribution of ducts" and only evaluated mechanical systems in the building in light of their "operating performance on the day of inspection."
At this procedural point in the litigation, we afford the complaint a liberal construction, accept the facts alleged therein as true and give plaintiffs the benefit of every possible favorable inference ( see Hurrell-Harring v State of New York, 15 NY3d 8, 20; Leon v Martinez, 84 NY2d 83, 87-88; Lazic v Currier, 69 AD3d 1213, 1213-1214). "When the motion to dismiss is premised upon documentary evidence, 'such motion may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiffs allegations, conclusively establishing a defense as a matter of law'" ( Crepin v Fogarty, 59 AD3d 837, 838, quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Erie Ins. Group v National Grange Mut. Ins. Co., 63 AD3d 1412, 1413). Where, as here, we are called upon to determine whether a contract's provisions are ambiguous, we must determine "as a matter of law whether they lack a definite and precise meaning and provide a reasonable basis for a difference of opinion" ( Weston v Cornell Univ., 56 AD3d 1074, 1075 [internal quotation marks and citations omitted]; see Pozament Corp. v AES Westover, LLC, 27 AD3d 1000, 1001; CV Holdings, LLC v Artisan Advisors, LLC, 9 AD3d 654, 656).
Defendants' CPLR § 3211(a)(1) Motion Considering first Defendants' CPLR § 3211(a)(1) motion, "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Erie Ins. Group v. National Grange Mut. Ins. Co., 63 AD3d 1412, 1413 [3d Dept. 2009]; Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314, 326). The documentary evidence must resolve "all factual issues as a matter of law and definitively dispose . . . of the plaintiff's claim."
On a motion to dismiss on the ground that the action is barred by documentary evidence "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Erie Ins. Group v. National Grange Mut. Ins. Co., 63 AD3d 1412 [3d Dept. 2009]; Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314, 326, pursuant to CPLR § 3211 [a][l]). The documentary evidence submitted must resolve "all factual issues as a matter of law and definitively dispose . . . of the plaintiff's claim".
On a motion to dismiss on the ground that the action is barred by documentary evidence, pursuant to CPLR § 3211(a)(1), "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Erie Ins. Group v. National Grange Mut. Ins. Co., 63 AD3d 1412 [3d Dept. 2009]; Goshen v. Mutual Life Ins. Co. of New York. 98 NY2d 314, 326). The documentary evidence submitted must resolve "all factual issues as a matter of law and definitively dispose . . . of the plaintiff's claim".