Quitman Manufacturing Co. v. Northbrook National Insurance , 698 N.Y.S.2d 469 ( 1999 )

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about July 21, 1998, which, in an action by plaintiff insured against defendant insurer for breach of the advertising injury clause of a commercial general liability policy, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment, unanimously affirmed, with costs.

The action was properly dismissed. While the subject policy covers a claim of copyright infringement only insofar as such claim arises out of plaintiff’s advertising of goods, products or services, the complaint in the underlying action, for which plaintiff seeks to recover its defense and settlement costs, alleged copyright infringement only by reason of plaintiff’s manufacture and sale of goods (see, Jerry Madison Enters. v Grasant Mfg. Co., 1990 US Dist LEXIS 1649, *10-12, 1990 Westlaw 13290, 4-5 [SD NY, Feb. 14, 1990, Mukasey, J., No. 89 Civ 2346 (MBM)]). No advertising injury having been alleged in the underlying action, the advertising injury clause is inapplicable (1990 US Dist LEXIS 1649, *4, 1990 WL 13290, 2). Concur — Sullivan, J. P., Nardelli, Mazzarelli, Lerner and Buckley, JJ.