Varon v. Country-Wide Insurance Co. , 146 A.D.3d 709 ( 2017 )

Varon v Country-Wide Ins. Co. (2017 NY Slip Op 00583)

Varon v Country-Wide Ins. Co.

2017 NY Slip Op 00583

Decided on January 31, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 31, 2017
Mazzarelli, J.P., Manzanet-Daniels, Feinman, Webber, Gesmer, JJ.

2911 154592/13

[*1]Christian Varon, Plaintiff-Appellant,

v

Country-Wide Insurance Company, Defendant-Respondent.

Antin, Ehrlich & Epstein, LLP, New York (Jeffry Antin of counsel), for appellant.

Thomas Torto, New York, for respondent.

Order and judgment (one paper), Supreme Court, New York County (Peter H. Moulton, J.), entered on or about September 2, 2014, which denied plaintiff's motion for summary judgment, granted defendant's cross motion for summary judgment, and declared that defendant insurance company is not required to tender the policy it issued to Adis Reckovic (the offending driver) to trigger plaintiff's right to seek underinsured motorist benefits from nonparty insurance company High Point, unanimously affirmed, without costs.

The excess coverage clause in the offending driver's policy states, in relevant part, that the driver's coverage "shall be excess over any other collectible insurance." The motion court correctly refused to interpret the phrase "any other collectible insurance" to mean "any other collectible primary insurance," and

correctly determined that the driver's coverage is "excess" to plaintiff's High Point insurance.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2017

CLERK