        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

980
CA 13-00372
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, AND VALENTINO, JJ.


CONLEY & TIBBITTS PROPERTIES, LLC,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LEATHERSTOCKING COOPERATIVE INSURANCE COMPANY,
DEFENDANT-RESPONDENT.


GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFF-APPELLANT.

GOZIGIAN, WASHBURN & CLINTON, COOPERSTOWN (E. W. GARO GOZIGIAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (David
A. Murad, J.), entered July 11, 2012. The order denied the motion of
plaintiff for summary judgment, granted the cross motion of defendant
for summary judgment and dismissed the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this breach of contract action arising from a
dispute over insurance coverage, plaintiff appeals from an order that
denied its motion for summary judgment and granted defendant’s cross
motion for summary judgment dismissing the amended complaint. We
affirm. Plaintiff obtained insurance from defendant to cover a rental
property (hereafter, building) that it owns in Oneida County.
Although the policy covered losses caused by, inter alia, fire, it
contained an exclusion for losses or increased costs resulting
directly or indirectly from “enforcement of any code, ordinance or law
regulating the . . . repair . . . of a building,” irrespective of “any
other cause or event that contributes concurrently or in any sequence
to the loss.”

     While the policy was in effect, a fire damaged the building.
Plaster had been disturbed while the fire was being extinguished, and
a state code required under such circumstances that an asbestos survey
be completed before any further action could be taken with respect to
the building. The survey indicated that asbestos was present, and
plaintiff obtained an estimate for the cost of removing the asbestos.
Although defendant reimbursed plaintiff for all other parts of its
claim, it denied coverage for the cost of asbestos removal. Plaintiff
thereafter commenced this action seeking “the full amount of the
building damages and remediation of asbestos.”
                                 -2-                          980
                                                        CA 13-00372

     “ ‘Where[, as here,] the provisions of an insurance contract are
clear and unambiguous, they must be enforced as written’ ” (Oot v Home
Ins. Co. of Ind., 244 AD2d 62, 66). Affording the unambiguous terms
in the instant insurance contract their plain and ordinary meaning
(see White v Continental Cas. Co., 9 NY3d 264, 267), we conclude that
defendant established its entitlement to judgment as a matter of law
by establishing that the policy does not provide coverage for the
increased costs sought by plaintiff (see generally Zuckerman v City of
New York, 49 NY2d 557, 562). Pursuant to the terms of the contract
exclusion, no coverage exists for increased costs caused by the
enforcement of the state code at issue here, “irrespective of any
other concurrent or subsequent contributing cause or event” (Lattimore
Rd. Surgicenter, Inc. v Merchants Group, Inc., 71 AD3d 1379, 1380).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
