Kiss Nail Products, Inc. v. CGU Insurance

299 A.D.2d 524, 750 N.Y.S.2d 526, 2002 N.Y. App. Div. LEXIS 11422

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 2002
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of an insurance policy, the defendant CGU Insurance Company, formerly known as General Accident Insurance Company, appeals from an order of the Supreme Court, Nassau County (Se-gal, J.), dated September 4, 2001, which denied its motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1).

Ordered that the order is affirmed, with costs.

Contrary to the appellant’s contention, it was not entitled to dismissal of the complaint based upon documentary evidence of the subject insurance policy (see CPLR 3211 [a] [1]; Trade Source v Westchester Wood Works, 290 AD2d 437). The policy did not conclusively establish a defense, since the plaintiff raised significant issues of fact as to precisely when the underlying property damage occurred and whether the appellant was notified of the damage as soon as practicable (see Kim v Maher, 226 AD2d 350; Reynolds Metal Co. v Aetna Cas. & Sur. Co., 259 AD2d 195).

The appellant’s remaining contention is without merit. Santucci, J.P., McGinity, Luciano and Schmidt, JJ., concur.