United Resin Products, Inc. v. Great American Insurance

213 A.D.2d 711, 624 N.Y.S.2d 957, 1995 N.Y. App. Div. LEXIS 3612

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1995
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of certain insurance contracts, the third-party defendant appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated January 13, 1994, which denied its motion for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the appellant’s motion for summary judgment dismissing the third-party complaint. There are material, triable issues of fact with respect to whether the appellant failed to timely notify the third-party plaintiff that an action had been commenced against the plaintiff and whether and to what extent this alleged failure proximately caused the losses incurred by the third-party plaintiff. Under these circumstances, summary judgment is unavailable to the appellant (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). Sullivan, J. P., Lawrence, Copertino and Joy, JJ., concur.