619 N.Y.S.2d 339 | N.Y. App. Div. | 1994
—In an action, inter alia, for a judgment declaring the rights of the parties under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Coppola, J.), entered July 12, 1993, which denied its motion for partial summary judgment declaring that its loss was covered by the insurance policy and granted the defendant’s cross motion for partial summary judgment declaring that the defendant insurance carrier was not liable for the loss sustained by the plaintiff.
Ordered that the order is affirmed, with costs.
We find that the Supreme Court properly granted partial summary judgment to the defendant in this case. The parties agree that the plaintiffs employee was approximately six feet away from his vehicle when thieves opened the trunk and stole over $250,000 worth of jewelry samples. The "Jewelers Block” policy in effect at the time of the incident excluded coverage for a loss caused by "[t]heft from any vehicle unless you, an employee, or other person whose only duty is to attend the vehicle, are actually in or upon such vehicle at the time of the theft”. The plaintiffs employee was clearly not "actually in or upon” the vehicle at the time of the theft and the defendant properly denied coverage based upon the above exclusion (see, Royce Furs v Home Ins. Co., 30 AD2d 238). Sullivan, J. R, Rosenblatt, Altman, Hart and Friedmann, JJ., concur.