63 A.D.2d 957 | N.Y. App. Div. | 1978
In an action by an insurer, inter alia, to recover from another insurer the amount paid out on a claim of fire loss in excess of its pro rata share, defendant Travelers Insurance Company appeals from an order of the Supreme Court, Nassau County, dated April 14, 1977, which denied its motion for reconsideration of the denial of its prior motion for summary judgment and, in so doing, denominated the motion as one for reargument. By order dated June 16, 1977, this court denied plaintiffs motion to dismiss the appeal, holding "that the order in question is one which denied a motion to renew and reconsider rather than a motion for reargument and is thus appealable.” Order reversed, on the law, with $50 costs and disbursements, motion granted, and, upon renewal, motion for summary judgment granted. In April, 1973 the defendant-appellant, Travelers Insurance Company, issued a homeowner’s policy to defendant Tommie Simmons. The policy covered, inter alia, the peril of fire to Simmons’ home at 1496 Little East Neck Road in Wyandanch, New York. The terms and conditions of Travelers’ policy were set forth in the certificate of insurance and in a booklet which was issued with the certificate of insurance. The relevant provisions of the policy state: "Pro rata liability. This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.” A further condition states: "5. Certain Other Insurance Not Permitted: Other insurance covering the property insured is not permitted except against losses not insured against under this policy or unless this policy is otherwise endorsed.” The Travelers policy was not indorsed to permit other insurance; Travelers claims that it did not consent to, or have knowledge of, the existence of other insurance on the property. It appears, however, that the claimant, defendant Tommie Simmons, procured additional fire insurance on the premises from Government Employees Insurance Company (GEICO). GEICO’s policy also contained the pro rata liability provision. Neither of the insurance companies was aware of the other policy