Liberty Mutual appealed from a denial of its summary judgment motion in this DJ action in which it sought a judgment declaring that Liberty Mutual Insurance Company was not obligated to either defend and/or indemnify its insureds in the underlying personal injury entitled Kulbacki v. J & C Building Renovations, pending in the Supreme Court, New York County, under Index No. 124171/00.

As a general rule, held the Appellate Division, the construction of terms and conditions of an insurance policy that are clear and unambiguous presents a question of law to be determined by the court (see Caporino v. Travelers Ins. Co., 62 NY2d 234, 239; Breed v. Insurance Co. of N. Am., 46 NY2d 351, 355; Raino v Navigators Ins. Co., 268 AD2d 419, 420; Dubay v. Trans-Am. Ins. Co., 75 AD2d 312). On the other hand, any ambiguity in an insurance contract must be construed against the insurer and in favor of the policyholder (see Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44, 49). However, the terms of an insurance contract are not considered ambiguous merely because the parties interpret the language differently (see Mount Vernon Fed. Ins. Co. v. Creative Hous., 88 NY2d 347, 352).

We agree with the contention of the defendant Liberty Mutual Insurance Company that the Supreme Court incorrectly determined that the insurance policy in question was ambiguous. Item 3, subsection c, of the insurance policy issued by Liberty Mutual to its insureds, J&C Building Renovations and Cezary Bartosiewicz, provides that no coverage is afforded for accidents occurring in certain states. Contrary to the plaintiffs contentions, Item 3, subsection c, clearly and unambiguously delineates New York as one of the states in which there is no coverage provided. Since there was no coverage in the first instance, there was no requirement for Liberty Mutual to provide a timely disclaimer (see Matter of Worcester Ins. Co. v. Bettenhauser, 95 NY2d 185, 188; National Union Fire Ins. Co. of Pittsburgh, Pa. v. Utica First Ins. Co., 6 AD3d 681, 682).

Accordingly, Liberty Mutual is entitled to a declaration that it was not obligated to either defend and/or indemnify its insureds in the underlying personal injury action entitled Kulbacki v. J&C Building Renovations, et al., in the Supreme Court, New York County, Index No. 124171/00 (see Lanza v. Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

Commercial Union Ins. Co. v. Liberty Mut. Ins. Co., 2007 NY Slip Op 00256 (Appellate Division, Second Department)