Indemnity Insurance of North America v. Art Students League

225 A.D.2d 398, 640 N.Y.2d 8, 640 N.Y.S.2d 8, 1996 N.Y. App. Div. LEXIS 2723

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1996
• Status: Published

Opinion

Defendant Rose was the owner of a painting consigned to defendant ACA Gallery, which, upon its sale, was to receive a commission of 40% of the sale price. Insurance for the painting, "[f]or account of whom it may concern”, was procured by the Museum and sponsor of the exhibit. After the show, and in the course of returning the painting to Rose’s warehouse, the painting was stolen. We agree with the IAS Court that defendant Rose is entitled to the entire $150,000 of proceeds from the insurance policy. The gallery had only a conditional interest in the painting and would earn a commission only if a sale were consummated. This did not occur (see, Arts and Cultural Affairs Law § 11.01 [12]). Since the material facts are undisputed, summary judgment was properly awarded (see, Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 32, affd 49 NY2d 924). Concur — Murphy, P. J., Milonas, Rosenberger, Ross and Mazzarelli, JJ.