Union Free School District No. 4 v. Interstate Insurance

40 A.D.2d 879, 338 N.Y.S.2d 26, 1972 N.Y. App. Div. LEXIS 3323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1972
• Status: Published

Opinion

In an action inter alia upon a fire insurance policy or policies to recover for a fire loss, plaintiff appeals from an order of the Supreme Court, Suffolk County, entered January 19, 1972, granting a motion by defendant Birmingham Fire Insurance Company of Pennsylvania for summary judgment- dismissing the complaint as against said defendant. Order reversed, with $20 costs and disbursements, and motion denied. It is evident from the papers submitted on the motion that the facts as to whether codefendant insurance broker Holland Service Agency, Inc., was authorized by respondent to provide fire insurance coverage on plaintiff’s school premises prior to the fire loss are within the exclusive knowledge of that codefendant and respondent. Plaintiff’s information as to such purported coverage is derived from oral and written statements by an officer or employee of said codefendant. In view of such situation, summary judgment should not have been granted to respondent (CPLR 3211, subd. [d] ; 3212, subd. [f]; Union Free School Dist. No. 4, Town of Huntington v. Interstate Ins. Co., N. Y. L. J., Mar. 27, 1972, p. 20, col. 4; cf. De Lany v. Allen, 111 N. Y. S. 2d 877, affd. 281 App. Div. 728). Latham, Acting P. J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.