Fadel v. Colonial Indemnity Insurance

227 A.D.2d 950, 643 N.Y.S.2d 843, 1996 N.Y. App. Div. LEXIS 6874

Opinion

Judgment unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting the motion of defendant, Colonial Indemnity Insurance Company (Colonial), for summary judgment dismissing the complaint. Plaintiff seeks to recover insurance proceeds under a policy of insurance issued to plaintiff by Colonial covering a building destroyed by fire. From our review of the record, we conclude that, under the circumstances of this case, issues of fact exist whether plaintiff materially and substantially increased the hazard protected against under the terms of the policy by permitting the tenants in the upper front residential unit to burn candles at a time when electric service to that apartment had been terminated, thereby relieving Colonial of its obligations under the policy (see, Williams v People’s Fire Ins. Co., 57 NY 274, 277; Frost House v Preferred Mut. Ins. Co., 15 AD2d 741). (Appeal from Judgment of Supreme Court, Erie County, Howe, J. — Summary Judgment.) Present — Lawton, J. P., Fallon, Callahan and Davis, JJ.