Opinion
August 3, 1998
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied the plaintiffs cross motion for summary judgment and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk, County, for the entry of a judgment declaring that the defendant is required to defend Karen A. Utting in the underlying action, including the payment of any defense costs already incurred in that action.
The Supreme Court erred in failing to declare that Commonwealth Land Title Insurance Company (hereinafter Commonwealth) has a duty to defend the plaintiff policyholder. We conclude that the "exception" language that Commonwealth included in the policy after it had inspected the premises is ambiguous and insufficient to qualify as an exception from coverage ( see, Matter of Mostow v. State Farm Ins. Cos., 88 N.Y.2d 321).
Rosenblatt, J. P., O'Brien, Ritter and Krausman, JJ., concur.