Qiu v. Livingston Mutual Insurance

—Appeal from a judgment (denominated order) of Supreme Court, Livingston County (Alonzo, J.), entered February 21, 2002, which, inter alia, granted the mo 1105 tion of defendant Livingston Mutual Insurance Company for summary judgment and dismissed the complaint against it. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the provision dismissing the complaint and granting judgment in favor of defendant Livingston Mutual Insurance Company as follows: It is adjudged and declared that defendant Livingston Mutual Insurance Company has no duty to provide personal liability coverage to defendant Xia Yin Liu in the underlying personal injury action and as modified the judgment is affirmed without costs. Memorandum: Plaintiffs commenced this action seeking judgment declaring that Livingston Mutual Insurance Company (defendant) has a duty to provide personal liability coverage to its insured, defendant Xia Yin Liu, in the underlying personal injury action brought on behalf of the infant plaintiff. Supreme Court properly concluded that the homeowner’s policy issued by defendant unambiguously excludes coverage for injury to the infant plaintiff, a person under the age of 21 in the care of the policy holder (see Utica Fire Ins. Co. of Oneida County v Gozdziak, 198 AD2d 775 [1993], appeal dismissed 84 NY2d 821 [1994]). The court erred, however, in dismissing the complaint rather than declaring the rights of the parties (see Pless v Town of Royalton, 185 AD2d 659, 660 [1992], affd 81 NY2d 1047 [1993]). We therefore modify the judgment by vacating the provision dismissing the complaint and granting judgment in favor of defendant declaring that it has no duty to provide personal liability coverage to defendant Xia Yin Liu in the underlying personal injury action. Present — Green, J.P., Hurlbutt, Scudder, Burns and Hayes, JJ.