Affatato v. Standard Fire Insurance

277 A.D.2d 264, 715 N.Y.S.2d 657, 2000 N.Y. App. Div. LEXIS 12502

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of a homeowner’s insurance policy, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Dunne, J.), entered January 12, 2000, as granted those branches of the plaintiff’s motion which were (1) pursuant to CPLR 3211 (b) and 3016 (b) to dismiss the defendant’s first through fifth affirmative defenses, and (2) pursuant to CPLR 3212 for partial summary judgment on the issue of liability on the first cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

In its verified answer and in its opposition to the plaintiffs establishment of a prima facie case for partial summary judgment, the defendant failed to support its assertion that the plaintiff violated the terms and conditions of the insurance policy at issue in relation to her claimed loss resulting from a theft (see, Brown v State Farm Ins. Co., 237 AD2d 476; Berman v Federal Ins. Co., 110 AD2d 803). The defendant’s mere speculation about the plaintiffs financial situation, as well as its unsupported suspicion that the theft of fragile items was improbable, did not demonstrate the existence of issues of fact as to whether the plaintiff or her husband intentionally concealed or misrepresented any material fact or circumstance relating to the theft or engaged in fraudulent conduct (cf., Stone v Continental Ins. Co., 234 AD2d 282; Ashline v Genesee Patrons Coop. Ins. Co., 224 AD2d 847). O’Brien, J. P., Gold-stein, Florio and McGinity, JJ., concur.