Ordered that the appeal from the order dated November 13, 2006 is dismissed, as that order was superseded by the order dated May 11, 2007, made upon reargument; and it is further,
Ordered that the order dated May 11, 2007 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents. The appellant failed to make a prima facie showing that a claim made by the defendant D W Saratoga, Inc. (hereinafter D W), under a title insurance policy it issued to D W was not covered under the policy. Accordingly, the Supreme Court properly denied the appellant's motion for summary judgment dismissing D W's cross claims against it and, upon reargument, properly adhered to that determination.
The Supreme Court also properly determined that the appellant is obligated to defend D W in the instant action under the terms of the title insurance policy. "[A]n insurer's duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy" ( Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65; see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137). "However, an insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" ( Allstate Ins. Co. v Zuk, 78 NY2d 41, 45). The appellant failed to make that showing. Its contention that coverage for D W's claim is precluded under the policy because the basis for the claim, the conveyance of the subject property pursuant to a purportedly fraudulent deed, was not known to the appellant or was not part of the public record as of the effective date of the policy, is unavailing. "[A] title insurer will be liable for hidden defects and all matters affecting title within the policy coverage and not excluded or specifically excepted from said coverage" ( Citibank v Commonwealth Land Tit. Ins. Co., 228 AD2d 635, 637 [internal quotation marks omitted]; see U.S. Bank Natl. Assn. TR U/A DTD 12/01/98 v Stewart Tit. Ins. Co., 37 AD3d 822, 824). Here, the policy contains no specific exclusion from coverage in the event the deed conveying the property to D W was fraudulent.
The appellant's remaining contentions are without merit.