Edelman v. Chubb Indemnity Insurance (41 A.D.3d 327, 2007)

Order, Supreme Court, New York County (Barbara R. Kapnick, J), entered March 31, 2006, which granted third-party defendant’s motion for summary judgment dismissing the complaint and the third-party complaint, denied defendant and third-party plaintiffs motion for summary judgment, and denied plaintiffs cross motion for partial summary judgment against defendant and third-party plaintiff, unanimously affirmed, without costs.

This action involves insurance under a consignment agreement. The court construed the plain and ordinary meaning of the unambiguous terms and conditions of the agreement (see United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]), and properly determined that third-party defendant’s insurance policy from Underwriters at Lloyd’s, covering property of customers while in the company’s care, custody or control, provided the necessary coverage called for in the agreement. It should be noted that plaintiffs cause of action against Phillips de Pury & Luxembourg did not include any claim of negligence, merely breach of contract.

Summary judgment was properly denied to both plaintiff and defendant Chubb Indemnity Insurance Company, plaintiffs all-risk insurer, in connection with plaintiffs claim under the policy because of questions of fact as to the cause of the damage to the subject painting (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

We have considered the parties’ remaining arguments for affirmative relief and find them without merit. Concur—Sullivan, J.P., Buckley, Gonzalez, Sweeny and Kavanagh, JJ.