EMPIRE FIRE AND MARINE INSURANCE COMPANY v. EVEREADY INSURANCE COMPANY

Ordered that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of judgment declaring that the defendant is not obligated to provide any coverage in the subject underlying personal injury actions.

"`[C]ourts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies'" (Sanabria v American Home Assur. Co., 68 N.Y.2d 866, 868 [1986], quoting State of New York v Home Indem. Co., 66 N.Y.2d 669, 671 [1985]). Unambiguous policy provisions must be given "their plain and ordinary meaning" (Government Empls. Ins. Co. v Kligler, 42 N.Y.2d 863, 864 [1977]; see Maroney v New York Cent. Mut. Fire Ins. Co., 5 N.Y.3d 467, 471-472 [2005]; United States Fid. & Guar. Co. v Annunziata, 67 N.Y.2d 229, 232 [1986]). While any ambiguity must be construed against the insurer as the drafter of the policy (see Guardian Life Ins. Co. of Am. v Schaefer, 70 N.Y.2d 888, 890 [1987]; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 N.Y.2d 390, 398 [1983]; Matter of Eveready Ins. Co. v Farrell, 304 A.D.2d 830, 831 [2003]; Matter of Eveready Ins. Co. v Ruiz, 208 A.D.2d 923 [1994]), the plain meaning of the policy's language may not be disregarded in order to find an ambiguity where none exists (see Bassuk Bros. v Utica First Ins. Co., 1 A.D.3d 470, 471 [2003]; Garson Mgt. Co. v Travelers Indem. Co. of Ill., 300 A.D.2d 538, 539 [2002]; Sampson v Johnston, 272 A.D.2d 956 [2000]).

Here, the Supreme Court erred in denying the defendant's motion for summary judgment. The policy issued by the defendant covers damages for which an "insured" becomes liable as a result of an automobile accident. Although "any person using `your covered auto'" is an "insured" within the meaning of the policy, the automobile at issue here was not "[the policyholder's] covered auto" since it was not owned by the policy holder and was not a "temporary substitute" auto within the meaning of the policy. Coverage for an automobile that does not qualify as a "covered auto" is provided only for the acts and omissions of the policy holder or a family member. It is undisputed that the driver of the subject vehicle was neither, and since the defendant's covered insured, who was the policy holder, was not a defendant in the underlying personal injury actions, there is no basis for the plaintiff to contend that the liability arises from any act or omission on the policy holder's part.

Thus, the defendant met its initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that the plain meaning of the exclusion relieved the defendant of liability in a case such as this, where a noninsured motorist was driving a vehicle that was not a "covered auto" within the terms of the policy. In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Accordingly, the defendant's motion for summary judgment should have been granted.

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is not obligated to provide any coverage in the subject underlying personal injury actions (see Lanza v Wagner, 11 N.Y.2d 317, 334 [1962], appeal dismissed 371 U.S. 74 [1962], cert denied 371 U.S. 901 [1962]).