Tasty Candy Products, Inc. v. Great Eastern Insurance

28 A.D.2d 1123, 285 N.Y.S.2d 160, 1967 N.Y. App. Div. LEXIS 2910

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1967
• Status: Published

Opinion

Concur — Steuer, J. P1., Capozzoli, Tilzer and McNally,. JJ.; MeGivern, J., dissents in the following memorándum: I would dissent and affirm the order appealed from. There are issues of fact which preclude the grant of summary judgment to either plaintiff or defendant. These issues include (1) the question as to whether plaintiff gave defendant that immediate notice of losses required by its fire insurance policy, (2) the question whether the construction by plaintiff of trailer additions upon its premises constituted a breach of warranty which voided the policy because the structures were not “fire resistive ”, incieasing the hazard insured, thus suspending the policy, and (3) the question as to whether or not defendant had prior knowledge of these conditions and failure to cancel the policy constituted a waiver of the condition and the warranty. Defendant denied such knowledge. Accordingly, both the motion and the cross motion for summary judgment were properly denied.