Calabro v. General Insurance of America

In an action for a judgment declaring that the defendant is obligated to defend and indemnify Sunrise Psychiatric Clinic, Inc., in connection with an underlying action entitled Calabro v Sunrise Psychiatric Clinic, commenced in the Supreme Court, Nassau County, under index No. 12274/04, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered September 29, 2004, as, in effect, denied that branch of its cross motion which was, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. Contrary to the defendant’s contention, the documentary evidence tendered in support of that branch of its cross motion which was, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint “failed to resolve all factual issues and conclusively dispose of the plaintiffs claims as a matter of law” (Wright v Evanston Ins. Co., 14 AD3d 505 [2005]; see CPLR 3211 [a] [1]). Accordingly, that branch of the motion was properly denied. 327 The defendant’s remaining contentions are either improperly raised for the first time on appeal (see DeLeon v New York City Tr. Auth., 5 AD3d 531, 532-533 [2004]), or without merit. Florio, J.P., Crane, Mastro and Rivera, JJ., concur.