Recovery Home Services v. Metropolitan Life Insurance

—Judgment, Supreme Court, New York County (Burton Sherman, J.H.O.), entered December 4, 2000, which, after a non-jury trial, dismissed the complaint, and bringing up for review an order, same court (Ira Gammerman, J.), entered December 1, 2000, which denied the now-deceased plaintiff insured’s motion and defendant’s cross motion for summary judgment but ruled that there was no coverage if the insured’s condition was 179 chronic, unanimously affirmed, without costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed within the appeal from the ensuing judgment. We find that there is no ambiguity in the policy language that would warrant application of the contra-insurer rule (cf., Kyong Nam Chang v General Acc. Ins. Co., 193 AD2d 521, 522), and that reliable, albeit contested, evidence supports all of the trial court’s essential factual conclusions (see, Daley v Related Cos., 236 AD2d 340, lv denied 90 NY2d 803), to wit: that decedent’s condition was chronic rather than acute, and that under the terms of the contract, such chronic condition is not covered by the policy. We have considered plaintiff estate’s remaining arguments and find them unavailing. Concur— Rosenberger, J. P., Williams, Wallach, Lerner and Friedman, JJ.