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

158
CA 13-01324
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


NORTH COUNTRY INSURANCE COMPANY,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FRANK RASPANTE, DEFENDANT,
VICTOR JONES, ARDINE JONES AND ADAM JONES,
DEFENDANTS-APPELLANTS.


ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Oneida County (Patrick F. MacRae, J.), entered March 18, 2013. The
judgment, among other things, granted that part of the motion of
plaintiff seeking a declaration that it has no obligation to defend
and indemnify defendant Frank Raspante in an action commenced by
defendants Victor Jones, Ardine Jones and Adam Jones, and denied the
cross motion of defendants-appellants seeking, inter alia, summary
judgment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying the motion in its entirety
and vacating the declarations, and by vacating that part denying the
cross motion insofar as it sought to compel discovery, and as modified
the judgment is affirmed without costs, and the matter is remitted to
Supreme Court, Oneida County, for further proceedings on that part of
the cross motion in accordance with the following Memorandum:
Plaintiff commenced this action seeking, inter alia, a declaration
that it is not obligated to defend and indemnify Frank Raspante
(defendant) in the underlying lead paint action commenced against him
by the remaining defendants (hereafter, Jones defendants), who
allegedly were injured based on their exposure to lead paint at a
property owned by defendant. Plaintiff thereafter moved for summary
judgment with respect to that requested relief, contending in support
thereof that there is a lead exclusion in defendant’s insurance
policy. The Jones defendants cross-moved for, inter alia, summary
judgment declaring that plaintiff is obligated to defend and indemnify
defendant in the underlying action, and an order compelling plaintiff
to respond to certain discovery demands, and defendant submitted an
affidavit in support of the cross motion. Supreme Court granted
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                                                         CA 13-01324

plaintiff’s motion in part, declaring that “plaintiff excluded from
[defendant’s] coverage claims for exposure to lead” and that, with
respect to the underlying action, plaintiff “is under no obligation to
indemnify” defendant and “is under no obligation to continue to
provide [defendant] with a defense.” The court denied the cross
motion.

     Contrary to the contention of the Jones defendants, plaintiff did
not violate any legal obligation by destroying its policy records.
The evidence submitted in support of plaintiff’s motion establishes
that plaintiff complied with 11 NYCRR 243.2 (b) (1), which requires
that insurers maintain policy records for “six calendar years after
the date the policy is no longer in force.”

     We agree with the Jones defendants, however, that the court erred
in granting plaintiff’s motion in part, issuing the above declarations
in plaintiff’s favor, and we therefore modify the judgment
accordingly. Even assuming, arguendo, that defendant’s policy
included the lead exclusion, we conclude that plaintiff failed to meet
its burden of establishing that defendant had notice of it (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). The
evidence submitted by plaintiff in support of its motion does not
establish that the exclusion was actually mailed, and the affidavit of
plaintiff’s employee, who averred that the exclusion was sent to
defendant pursuant to plaintiff’s custom and practice, is “conclusory
and otherwise insufficient to establish ‘office practice . . . geared
so as to ensure the likelihood that [the documents were] always
properly addressed and mailed’ ” (Matter of Frankel v Citicorp Ins.
Servs., Inc., 80 AD3d 280, 284, quoting Nassau Ins. Co. v Murray, 46
NY2d 828, 830; cf. Preferred Mut. Ins. Co. v Donnelly, 111 AD3d 1242,
1243, lv denied ___ NY3d ___ [Apr. 3, 2014]). Furthermore, even
assuming, arguendo, that plaintiff met its initial burden on its
motion, we conclude that the Jones defendants raised an issue of fact
whether defendant’s policy included the lead exclusion by submitting
evidence that at least some policies at the time did not contain the
exclusion.

     The Jones defendants further contend that they were entitled to
the declarations sought in their cross motion because the lead
exclusion is void as against public policy and the language of the
exclusion is ambiguous. We reject those contentions (see Preferred
Mut. Ins. Co., 111 AD3d at 1245; 3405 Putnam Realty Corp. v Chubb
Custom Ins. Co., 14 AD3d 310, 311; see generally Greenfield v Philles
Records, 98 NY2d 562, 569-570).

     Finally, the Jones defendants contend that the court erred in
denying their cross motion insofar as they sought to compel plaintiff
to produce certain documents. In light of our determination herein,
we further modify the judgment by vacating that part denying the cross
motion to that extent, and we remit the matter to Supreme Court to
rule on that part of the cross motion.
Entered: May 9, 2014                            Frances E. Cafarell
                                                Clerk of the Court
