9105-9106. RENAISSANCE ART INVESTORS, LLC, plf-ap, v. AXA ART INSURANCE CORPORATION, Defendant/plf-res, v. RENAISSANCE ART INVESTORS, LLC, def-ap — Buchanan Ingersoll & Rooney PC, New York (Kristi A. Davidson of counsel), for ap — Wade Clark Mulcahy, New York (Dennis M. Wade of counsel), for res — Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 25, 2011, which denied Renaissance Art Investors, LLC’s (RAI) motion to dismiss AXA Art Insurance Corporation’s declaratory judgment action and granted AXA’s cross motion for summary judgment, declaring that AXA is not obligated to indemnify RAI with respect to its claimed losses; and order (same court and Justice), entered September 7, 2011, which, citing the declaratory judgment order, dismissed RAI’s plenary action in its entirety, unanimously affirmed, without costs.
The policies purchased by RAI, which covered “losses” as that term is defined in the policies, contained an unambiguous exclusion, precluding coverage in the event of “[a]ny fraudulent, dishonest or criminal act or acts by: (a) You, anyone else with an interest in the property or your or their employees whether or not committed alone or in collusion with others, whether or not such act or acts be committed during the hours of employment; or (b) Anyone entrusted with the Covered Property.” We reject the assertion that the exclusion does not apply because RAI believed it was purchasing “all risk” coverage and that the term “all-risk” implies comprehensive coverage — including fraud. “[A]s a matter of law[,] insurance coverage, even under an all risk policy, extends only to fortuitous losses” and “[w] hether or not a loss is fortuitous [] is a legal question to be resolved by the Court” (Redna Marine Corp. v. Poland, 46 FRD 81, 86 [SDNY 1969]), at 87). Here, the motion court correctly determined that the fraud engaged in by Lawrence Salander, one of RAI’s principals, and the Gallery, one of RAI’s members, created by Salander for the purpose of holding objects of art purchased by RAI, was not fortuitous.
