Mount Vernon Fire Insurance v. Bob Besser, Inc.

203 A.D.2d 54, 612 N.Y.S.2d 835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1994
• Status: Published

Opinion

—Order, Supreme Court, Suffolk County (Alfred Lama, J.), entered March 13, 1992, which denied defendant-appellant’s motion and plaintiff-respondent’s cross-motion for summary judgment on the grounds that issues of fact exist as to notice and timely disclaimer, unanimously affirmed, without costs.

Contrary to the IAS Court’s determination, we find that no issue of fact exists as to the notice to insurer and the notice of disclaimer, in that both were timely (see, 875 Forest Ave. Corp. v Aetna Cas. & Sur. Co., 37 AD2d 11, ajfd 30 NY2d 726 [as to notice to insurer]; Insurance Law § 3420 [d]; Home Ins. Co. v Corcoran, 65 NY2d 1035 [as to disclaimer]). However, an issue of fact does exist as to coverage. We note that the premium for the policy at issue was approximately $550 per annum, while the underwriter for the insurer alleged that the premium for construction and installation of swimming pools would be 90 times that amount. Concur — Sullivan, J. P., Rosenberger, Ross, Rubin and Williams, JJ.