Third Avenue Camera & Electronics, Inc. v. Admiral Insurance

109 A.D.2d 612, 486 N.Y.S.2d 10, 1985 N.Y. App. Div. LEXIS 56617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1985
• Status: Published

Opinion

Order of the Supreme Court, New York County (Price, J.), entered May 1, 1984, which granted plaintiff’s motion for summary judgment as to liability, reversed, on the law, with costs, and the motion for summary judgment is denied.

This is an action under an all risks insurance policy to recover the value of property allegedly lost in the course of a burglary. Although plaintiff’s premises were the subject of a burglary, it is clear, as acknowledged by Special Term, that a factual issue was raised with regard to the value of the property that was taken in the course of the burglary. Special Term did not appreciate, however, that the totality of the circumstances presents at least a factual issue as to whether plaintiff’s claim with regard to what was taken and its value was intentionally misstated. If it was intentionally misstated, a defense to any recovery under the policy would clearly be presented. Accordingly, it was error to grant plaintiff’s motion for summary judgment with regard to liability. Concur — Sandler, J. P., Asch, Fein and Kassal, JJ.