Justice Saliann Scarpulla
Plaintiff Empire Insurance Company sought a declaration that it has no duty to defend or indemnify defendant San Miguel under a personal homeowner’s insurance policy. Defendant McHenry, who recovered a $750,000 judgment after a jury verdict in a separate tort action against San Miguel, sought a declaration that Empire owed coverage to San Miguel and is therefore liable for the amount of his judgment and interest pursuant to Insurance Law 3420(b). Empire and McHenry moved for summary judgment. The court granted Empire’s motion for summary judgment, determining that it met its prima facie burden of demonstrating that there is no coverage owed, but denied McHenry’s motion for summary judgment, holding that he failed to establish an issue of fact demonstrating coverage to San Miguel. The court added that while McHenry appears to seek a declaration that Empire was required to provide defense and indemnity coverage, there is no coverage here and therefore no duty to defend.
