Supreme Court, Appellate Division, Second Department, New York.
Howard CHU, M. D. et al., Respondents,v.CHICAGO TITLE INSURANCE COMPANY, Appellant.
July 12, 1982.
Action was brought against title insurer on theories of negligence and breach of contract. The Supreme Court, Rockland County, Kelly, J., denied defendant's motion for summary judgment dismissing the complaint, and it appealed. The Supreme Court, Appellate Division, held that the action was precluded under the terms of the contract.
Reversed and motion granted.
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Both breach of contract and negligence actions against title insurer were precluded where terms of contract sued on specifically and unambiguously disclaimed responsibility for certificate of occupancy violation underlying the action, contract provided that all actions against the company had to be based on the provisions of the policy, and there was no adequate allegation that the parties had entered into a special agreement to ascertain that the structure was in conformity with the certificate of occupancy. **229 Dreyer & Traub, New York City (Samuel Kirschenbaum and Hannah K. Flamenbaum, New York City, of counsel), for appellant.
Richard Narducci, Nanuet, for respondents.
Before O'CONNOR, J. P., and THOMPSON, NIEHOFF and RUBIN, JJ.
MEMORANDUM BY THE COURT.
*574 In an action to recover damages predicated on theories of negligence and breach of contract, defendant appeals from so much of an order of the Supreme Court, Rockland County (KELLY, J.), dated September 24, 1981, as denied its motion for summary judgment dismissing the complaint.
Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion for summary judgment dismissing the complaint granted.
The terms of the contract sued upon specifically and unambiguously disclaim responsibility for the certificate of occupancy violation that underlies the instant action, and the contract further provides: "11. Policy Entire Contract. "All actions or proceedings against this company must be based on the provisions of this policy. Any other action or actions or rights of action that the insured may have or may bring against this company in respect of other services rendered in connection with the issuance of this policy, shall be deemed to have merged in and be restricted to its terms and conditions."
Accordingly, the complaint which alleges a cause of action sounding in negligence as **230 well as breach of contract, is inadequate as a matter of law (see Smirlock Realty Corp. v. Title Guar. Co., 70 A.D.2d 455, 421 N.Y.S.2d 232, mod 52 N.Y.2d 179, 437 N.Y.S.2d 57, 418 N.E.2d 650). We further note that the affidavits submitted by plaintiffs fail to adequately allege that they entered into a special agreement with defendant to ascertain that the structure in issue was in conformity with the certificate of occupancy.
452 N.Y.S.2d 229, 89 A.D.2d 574
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