| Dryden Mut. Ins. Co. v Goessl |
| 2016 NY Slip Op 04324 [27 NY3d 1050] |
| June 7, 2016 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, July 20, 2016 |
| Dryden Mutual Insurance Company, Appellant, v Stanley Goessl et al., Defendants, and AP Daino & Plumbing, Inc., et al., Respondents. |
Argued April 28, 2016; decided June 7, 2016
Dryden Mut. Ins. Co. v Goessl, 117 AD3d 1512, affirmed.
Knych & Whritenour, LLC, Syracuse (Peter W. Knych of counsel), and Bruce R. Bryan, Syracuse, for appellant.
Kenney Shelton Liptak Nowak LLP, Buffalo (Jessica L. Foscolo and Robert A. Crawford of counsel), for respondents.
Memorandum.
[*2]The order of the Appellate Division should be affirmed, with costs.
In this insurance coverage dispute, plaintiff Dryden Mutual Insurance Company seeks a declaratory judgment that it does not have a duty to defend and indemnify defendant Stanley Goessl in an underlying tort action. Dryden Mutual also seeks a declaration that defendant The Main Street America Group has a duty to defend and indemnify Goessl. To determine which insurance policy provides coverage to Goessl, the courts below were required to apply principles of contract interpretation to the insurance policies (see Matter of Covert, 97 NY2d 68, 76 [2001]). In doing so, a factual question arose and the lower{**27 NY3d at 1052} courts reached opposite conclusions, based on their own findings of fact, as to whether Dryden Mutual or Main Street has a duty to defend and indemnify Goessl.
Where, as here, the Appellate Division makes new factual findings and reverses the trial court's factual findings, we must determine which court's findings "more nearly comport with the weight of the evidence" (Oelsner v State of New York, 66 NY2d 636, 637 [1985]). Upon review of the record, we conclude that the Appellate Division's factual findings more nearly comport with the weight of the evidence. Therefore, Dryden Mutual has a duty to defend and indemnify Goessl in the underlying tort action and Main Street has no such duty.
Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur; Judge Fahey taking no part.
Order affirmed, with costs, in a memorandum.