Papain v. American Insurance

Appellate Division of the Supreme Court of New York

Papain v. American Insurance

16 A.D.2d 980, 230 N.Y.S.2d 178, 1962 N.Y. App. Div. LEXIS 8966

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

DecidedJune 25, 1962

StatusPublished

This text of 16 A.D.2d 980 (Papain v. American Insurance) 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

Papain v. American Insurance, 16 A.D.2d 980, 230 N.Y.S.2d 178, 1962 N.Y. App. Div. LEXIS 8966 (N.Y. Ct. App. 1962).

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Opinion

In an action on a personal property floater insurance policy to recover the value of certain furs lost by theft, the insured plaintiff appeals: (a) from an order of the Supreme Court, Nassau County, dated March 1, 1962, which granted defendant’s motion for summary judgment dismissing the complaint on the merits, pursuant to rule 113 of the Rules of Civil Practice; and (b) from the judgment of said court, entered March 5, 1962 on such order. Order and judgment affirmed, without costs. A prior action, commenced within the one-year limitation contained in the policy, had been dismissed on March 1, 1961 for lack of prosecution. The present (second) action was commenced within one year after such dismissal, but more than a year after the loss. The motion for summary judgment was granted on the ground that the action was not brought within a year after the loss, as required by the policy. In our opinion, this second action was properly dismissed. It was not saved by the provisions of section 23 of the Civil Practice Act (Loomis v. Girard Fire & Mar. Ins. Co., 256 App. Div. 443). In the ease (Rogers v. Home Ins. Co., 95 F. 109) relied on by plaintiff, the policy condition was different from the one at bar. Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.

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In an action on a personal property floater insurance policy to recover the value of certain furs lost by theft, the insured plaintiff appeals: (a) from an order of the Supreme Court, Nassau County, dated March 1, 1962, which granted defendant’s motion for summary judgment dismissing the complaint on the merits, pursuant to rule 113 of the Rules of Civil Practice; and (b) from the judgment of said court, entered March 5, 1962 on such order. Order and judgment affirmed, without costs. A prior action, commenced within the one-year limitation contained in the policy, had been dismissed on March 1, 1961 for lack of prosecution. The present (second) action was commenced within one year after such dismissal, but more than a year after the loss. The motion for summary judgment was granted on the ground that the action was not brought within a year after the loss, as required by the policy. In our opinion, this second action was properly dismissed. It was not saved by the provisions of section 23 of the Civil Practice Act (Loomis v. Girard Fire & Mar. Ins. Co., 256 App. Div. 443). In the ease (Rogers v. Home Ins. Co., 95 F. 109) relied on by plaintiff, the policy condition was different from the one at bar. Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

16 A.D.2d 980, 230 N.Y.S.2d 178, 1962 N.Y. App. Div. LEXIS 8966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/papain-v-american-insurance-nyappdiv-1962.

Opinion

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