Investors Insurance of America v. Eastway Construction Corp.

Appellate Division of the Supreme Court of New York

Investors Insurance of America v. Eastway Construction Corp.

120 A.D.2d 336, 502 N.Y.S.2d 2, 1986 N.Y. App. Div. LEXIS 56473

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 1, 1986

StatusPublished

This text of 120 A.D.2d 336 (Investors Insurance of America v. Eastway Construction Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Investors Insurance of America v. Eastway Construction Corp., 120 A.D.2d 336, 502 N.Y.S.2d 2, 1986 N.Y. App. Div. LEXIS 56473 (N.Y. Ct. App. 1986).

Pincite

Opinion

— Judgment of the Supreme Court, New York County (Seymour Schwartz, J.), entered on January 24, 1985, which, following a nonjury trial, awarded plaintiff the sum of $4,833.37 plus interest, costs and disbursements, is modified, on the law, and plaintiff awarded the full amount of the premiums plus interest, and otherwise affirmed, with costs and disbursements. Settle order.

In an order entered on May 31, 1984, this court unanimously affirmed an order of the Supreme Court, New York County (Alvin Klein, J.), entered on November 1, 1983, which granted defendants’ motion to renew, and upon renewal, granted plaintiff’s motion for summary judgment on the issue of liability and set the matter down for an assessment of damages (101 AD2d 1034). In its order, Special Term had expressly held that "testimony about an oral agreement will not be used to vary the terms of the written contract of insurance.” Notwithstanding this mandate, the trial court, in endeavoring to determine the amount of the premiums owed to plaintiff, permitted defendants to offer testimony to explain what the court deemed to be an ambiguous term of the insurance contract in question. Since the only purpose of the assessment was to ascertain the amount of the premiums due, the computation of which is provided in the policy, the court was unwarranted in hearing evidence regarding matters which were decided on the prior appeal. Consequently, plaintiff should have been awarded the full amount of the premiums. Concur — Ross, Carro, Fein and Milonas, JJ.

[337]*337Kupferman J. P., dissents and would affirm for the reasons stated by Schwartz, J., at Trial Term.

Settle order.

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— Judgment of the Supreme Court, New York County (Seymour Schwartz, J.), entered on January 24, 1985, which, following a nonjury trial, awarded plaintiff the sum of $4,833.37 plus interest, costs and disbursements, is modified, on the law, and plaintiff awarded the full amount of the premiums plus interest, and otherwise affirmed, with costs and disbursements. Settle order.

In an order entered on May 31, 1984, this court unanimously affirmed an order of the Supreme Court, New York County (Alvin Klein, J.), entered on November 1, 1983, which granted defendants’ motion to renew, and upon renewal, granted plaintiff’s motion for summary judgment on the issue of liability and set the matter down for an assessment of damages (101 AD2d 1034). In its order, Special Term had expressly held that "testimony about an oral agreement will not be used to vary the terms of the written contract of insurance.” Notwithstanding this mandate, the trial court, in endeavoring to determine the amount of the premiums owed to plaintiff, permitted defendants to offer testimony to explain what the court deemed to be an ambiguous term of the insurance contract in question. Since the only purpose of the assessment was to ascertain the amount of the premiums due, the computation of which is provided in the policy, the court was unwarranted in hearing evidence regarding matters which were decided on the prior appeal. Consequently, plaintiff should have been awarded the full amount of the premiums. Concur — Ross, Carro, Fein and Milonas, JJ.

[337]*337Kupferman J. P., dissents and would affirm for the reasons stated by Schwartz, J., at Trial Term.

Settle order.

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Bluebook (online)

120 A.D.2d 336, 502 N.Y.S.2d 2, 1986 N.Y. App. Div. LEXIS 56473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/investors-insurance-of-america-v-eastway-construction-corp-nyappdiv-1986.