Berman v. Federal Insurance

110 A.D.2d 803, 488 N.Y.S.2d 226, 1985 N.Y. App. Div. LEXIS 48707

Opinion

On the motion for partial summary judgment, it was incumbent upon defendants to lay bare their proof and thereby show the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Defendants have wholly failed to contradict the elements of plaintiffs’ claim of loss under the valued jewelry policy. The mere unsubstantiated allegations of fraud by defense counsel are insufficient to defeat the summary judgment motion (see, Spaulding v Benenati, 57 NY2d 418; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255). Moreover, we find that, since the police reports and other evidence in the case were equally available to all the parties, Special Term properly rejected defendants’ argument that the salient facts were solely within plaintiffs’ knowledge. Accordingly, we affirm. Mollen, P. J., O’Connor, Weinstein and Brown, JJ., concur.