        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

348
CA 15-01113
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


LAFRAMBOISE GROUP LTD., PLAINTIFF-APPELLANT,

                     V                             MEMORANDUM AND ORDER

COMMERCIAL UNDERWRITERS INSURANCE COMPANY,
LYONS FALLS PULP & PAPER, INC., WALT WILMSHURST,
BOURDON’S INSURANCE AGENCY, INC.,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANT.


FISCHER, BESSETTE, MULDOWNEY & HUNTER, LLP, MALONE (MATTHEW H. MCARDLE
OF COUNSEL), FOR PLAINTIFF-APPELLANT.

SCHMITT & LASCURETTES, LLC, UTICA (WILLIAM P. SCHMITT OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS WALT WILMSHURST AND BOURDON’S INSURANCE AGENCY,
INC.

COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (MEGAN E. GRIMSLEY OF
COUNSEL), FOR DEFENDANT-RESPONDENT COMMERCIAL UNDERWRITERS INSURANCE
COMPANY.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Oneida County (Bernadette T. Clark, J.), entered
February 12, 2014. The judgment, among other things, granted that
part of the motion of defendant Commercial Underwriters Insurance
Company seeking summary judgment dismissing plaintiff’s amended
complaint against it, and granted the cross motion of defendants Walt
Wilmshurst and Bourdon’s Insurance Agency, Inc. seeking summary
judgment dismissing plaintiff’s complaint against it.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reinstating the amended complaint
against defendant Commercial Underwriters Insurance Company to the
extent that it seeks a declaration and granting judgment in favor of
that defendant as follows:

          It is ADJUDGED and DECLARED that plaintiff is not
     entitled to indemnification or a defense from defendant
     Commercial Underwriters Insurance Company in the underlying
     action,

and as modified the judgment is affirmed without costs.

     Memorandum:   We conclude, for reasons stated in the decision at
                                 -2-                           348
                                                         CA 15-01113

Supreme Court, that plaintiff is not entitled to the relief sought in
the amended complaint against defendant Commercial Underwriters
Insurance Company (CUIC) or the complaint against defendants Walt
Wilmshurst and Bourdon’s Insurance Agency, Inc. We note, however,
that the court erred in dismissing the amended complaint against CUIC
to the extent that it seeks declaratory relief rather than declaring
the rights of the parties (see Pless v Town of Royalton, 185 AD2d 659,
660, affd 81 NY2d 1047; see also Teague v Automobile Ins. Co. of
Hartford, Conn., 71 AD3d 1584, 1586; Ward v County of Allegany, 34
AD3d 1288, 1289). We therefore modify the judgment accordingly, and
we grant judgment declaring that plaintiff is not entitled to
indemnification or a defense from CUIC in the underlying action.




Entered:   May 6, 2016                         Frances E. Cafarell
                                               Clerk of the Court
