Sardina v. Travelers Insurance , 689 N.Y.S.2d 829 ( 1999 )

—Order unanimously reversed on the law without costs, motion granted and judgment ordered in accordance with the following Memorandum: Supreme Court erred in denying the motion of defendant GMAC Mortgage Corporation of Pa., also known as GMAC Mortgage Corporation (GMAC), for summary judgment seeking, inter alia, the amount of $437,935.50, the outstanding balance of its home equity line of credit, plus interest, from defendant Travelers Insurance Company (Travelers). GMAC provided for refinancing of plaintiffs’ home by way of two mortgages, i.e., a $200,000 mortgage and a $351,200 home equity line of credit. Travelers insured plaintiffs’ home for fire loss but the Travelers policy listed GMAC as the mortgagee under one mortgage loan number. Following a fire loss, Travelers refused to pay plaintiffs’ claim under the policy and paid GMAC as mortgagee for the one mortgage listed on the policy. GMAC met its initial burden by establishing that it is entitled to payment for both mortgages pursuant to the specific language of the policy (see, State of New York v Home Indem. Co., 66 NY2d 669, 671), and plaintiffs failed to raise a material question of fact. In any event, if there is an ambiguity in the policy language, it must be resolved against Travelers, the insurer that drafted the policy (see, State of New York v Home Indem. Co., supra, at 671; see also, Breed v Insurance Co., 46 NY2d 351, 353; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361). We therefore grant GMAC’s motion for summary judgment and order that judgment be entered in favor of GMAC against Travelers in the amount of $437,935.50 plus per diem interest of $92.82 commencing March 17, 1998. (Appeal from Order of Supreme Court, Erie County, Fahey, J. — Summary Judgment.) Present — Green, J. P., Lawton, Scudder and Balio, JJ.