Mauro v. Travelers Insurance

107 A.D.2d 1017, 486 N.Y.S.2d 538, 1985 N.Y. App. Div. LEXIS 42828

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1985
• Status: Published

Opinion

— Judgment unanimously affirmed, with costs. Memorandum: Plaintiff appeals from a judgment dismissing his complaint upon a jury verdict of no cause of action in this suit to recover under an insurance policy issued by defendant for building damage, property loss and business interruption arising from a fire in plaintiff’s tailor and formal wear rental shop. Defendant refused to pay the claim on the grounds that plaintiff had set the fire and had submitted fraudulently exaggerated claims of loss, both of which would bar recovery under the terms of the policy. We find the evidence to be sufficient to support the verdict. The claimed errors in the court’s charge to the jury do not warrant reversal and in some cases were not preserved for our review (see People v Thomas, 50 NY2d 467, 471). Plaintiff asserts that he did not advance his claim for damages due to business interruption at any time prior to commencement of this action, that, therefore, any alleged exaggeration in that claim cannot form a basis for defendant’s affirmative defense of fraud (see generally, Ocean-Clear, Inc. v Continental Cas. Co., 94 AD2d 717, 718), and that permitting cross-examination and summation on the issue was reversible error. It is not clear from the record whether the claim of loss due to business interruption was asserted at the examination under oath or at any other time preceding the action; even if it were not, however, we find any error in this regard to have been harmless. (Appeal from judgment of Supreme Court, Oneida County, O’Donnell, J. — breach of contract.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Schnepp, JJ.