Home Indemnity Co. v. Alumni Plumbing & Heating Corp.

166 A.D.2d 208, 564 N.Y.S.2d 97, 1990 N.Y. App. Div. LEXIS 11691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered March 22, 1990, which denied plaintiff Home Indemnity Company’s motion for partial summary judgment, unanimously affirmed, without costs and without disbursements.

Plaintiff failed to sufficiently establish its cause of action to warrant judgment in its favor as a matter of law. Material issues of fact exist concerning whether plaintiff breached its contractual obligation to indemnify the defendant insured, thus justifying defendant’s withholding of premium payments. In any event, apart from these issues of fact, defendant’s counterclaim, which is in excess of plaintiffs claim, is related to and not readily severable from plaintiffs claim, presenting an independent basis for the denial of summary judgment. (See, GTE Automatic Elec. v Martin’s, Inc., 127 AD2d 545, 547.) Concur—Murphy, P. J., Kupferman, Ross and Ellerin, JJ.