Davidoll Designs, Inc. v. Reliance Insurance ( 2001 )

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about December 22, 1999, which, in an action to recover on a jeweler’s block policy, granted defendant insurer’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly granted to defendant insurer since the subject policy contained the standard exclusion for “[1] oss or damage to property while in or upon any automobile * * * unless, at the time the loss or damage occurs, there is actually in or upon such vehicle, the Insured * * * or a person whose sole duty is to attend the vehicle,” and the record discloses no factual basis to conclude that, at the time of the theft, plaintiffs salesman was actually “in or upon” the vehicle from which its jewelry was stolen. The subject exclusion, which “has consistently been given a literal construction rejecting various theories of constructive possession of the vehicle * * * applies to bar recovery” in this case (Cordova, Inc. v Lloyd’s Underwriters, 228 AD2d 179,180, lv denied 89 NY2d 802; Royce Furs v Home Ins. Co., 30 AD2d 238; Wideband Jewelry Corp. v Sun Ins. Co., 210 AD2d 220). Concur — Rosenberger, J. P., Tom, Mazzarelli, Ellerin and Wallach, JJ.