Truscelli v. Fireman's Fund Insurance

Appellate Division of the Supreme Court of New York

Truscelli v. Fireman's Fund Insurance

137 A.D.2d 806, 525 N.Y.S.2d 269, 1988 N.Y. App. Div. LEXIS 1906

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

DecidedFebruary 29, 1988

StatusPublished

Cited by1 cases

This text of 137 A.D.2d 806 (Truscelli v. Fireman's Fund 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

Truscelli v. Fireman's Fund Insurance, 137 A.D.2d 806, 525 N.Y.S.2d 269, 1988 N.Y. App. Div. LEXIS 1906 (N.Y. Ct. App. 1988).

Pincite

Opinion

In an action to recover under an insurance policy for the loss of his pleasure boat, the plaintiff appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated October 16, 1986, which denied his motion for summary judgment in his favor and against the respondent.

Ordered that the order is affirmed, with costs.

Summary judgment is a drastic remedy which only should be granted when there is no doubt as to the existence of an arguable triable issue of fact (see, Andre v Pomeroy, 35 NY2d 361). At bar, the opposing papers of the respondent Fireman’s Fund Insurance Companies were sufficient to raise a question as to whether the plaintiffs boat was being used for a commercial purpose and therefore that its loss was not covered by the insurance policy in question at the time it was destroyed by fire. Accordingly, summary judgment was properly denied. Further, contrary to the plaintiffs contention, we do not find that the respondent, which initially disclaimed coverage on the basis of a breach of warranty, waived the right to assert the affirmative defense of material misrepresentation in its answer (see, Ocean-Clear, Inc. v Continental Cas. Co., 94 AD2d 717). Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover under an insurance policy for the loss of his pleasure boat, the plaintiff appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated October 16, 1986, which denied his motion for summary judgment in his favor and against the respondent.

Ordered that the order is affirmed, with costs.

Summary judgment is a drastic remedy which only should be granted when there is no doubt as to the existence of an arguable triable issue of fact (see, Andre v Pomeroy, 35 NY2d 361). At bar, the opposing papers of the respondent Fireman’s Fund Insurance Companies were sufficient to raise a question as to whether the plaintiffs boat was being used for a commercial purpose and therefore that its loss was not covered by the insurance policy in question at the time it was destroyed by fire. Accordingly, summary judgment was properly denied. Further, contrary to the plaintiffs contention, we do not find that the respondent, which initially disclaimed coverage on the basis of a breach of warranty, waived the right to assert the affirmative defense of material misrepresentation in its answer (see, Ocean-Clear, Inc. v Continental Cas. Co., 94 AD2d 717). Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

137 A.D.2d 806, 525 N.Y.S.2d 269, 1988 N.Y. App. Div. LEXIS 1906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/truscelli-v-firemans-fund-insurance-nyappdiv-1988.

Opinion

Related

Cite This Page — Counsel Stack