Gray v. Tri-State Consumer Ins. Co.Gray v. Tri-State Consumer Ins. Co.
Greenblatt & Agulnick, P.C., Great Neck, NY (Scott E. Agulnick and Steven A. Kotchek of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of a homeowner‘s insurance policy, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Gavrin, J.), entered December 16, 2015, as denied its motion for summary judgment dismissing the complaint and on its counterclaim to recover damages for breach of the concealment and fraud provision of the policy, and conditionally granted the plaintiff‘s cross motion pursuant to
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof conditionally granting the plaintiff‘s cross motion pursuant to
After her home was damaged by a fire, the plaintiff commenced this action, inter alia, to recover damages for breach of a homeowner‘s insurance policy. In its amended answer, the defendant insurance carrier asserted a counterclaim to recover damages for breach of the concealment and fraud provision of the policy, which stated that the defendant does not provide coverage for an insured who “[i]ntentionally concealed or misrepresented any material fact or circumstance,” or “[e]ngaged in fraudulent conduct relating to this insurance.” In the order appealed from, the Supreme Court, inter alia, denied the defendant‘s motion for summary judgment dismissing the complaint and on its counterclaim, and conditionally granted the plaintiff‘s cross motion pursuant to
The Supreme Court properly denied the defendant‘s motion for summary judgment dismissing the complaint and on its counterclaim to recover damages for breach of the concealment and fraud provision of the policy. The evidence submitted by the defendant revealed the existence of triable issues of fact as to whether the defendant breached the subject insurance policy by failing to pay the claim within 60 days after it received proof of loss and reached an agreement with the plaintiff as to the amount of the loss (see 232 Broadway Corp. v Calvert Ins. Co., 149 AD2d 694, 695-696). Further, although the defendant established its prima facie entitlement to judgment as a matter of law on the issue of whether the plaintiff breached the concealment and fraud provision of the policy and thus vitiated the defendant‘s obligation to provide coverage, in opposition, the plaintiff raised a triable issue of fact as to whether she intentionally submitted an inaccurate proof of loss (see Walker v Tighe, 142 AD3d 549, 551; Christophersen v Allstate Ins. Co., 34 AD3d 515, 516; St. Irene Chrisovalantou Greek Orthodox Monastery v Cigna Ins. Co., 226 AD2d 624). Moreover, contrary to the defendant‘s contention, it was not entitled to partial summary judgment dismissing the request for consequential damages, as it failed to make a prima facie showing that the consequential damages sought by the plaintiff were not within the contemplation of the parties when they executed the insurance policy (see Pandarakalam v Liberty Mut. Ins. Co., 137 AD3d 1234, 1236; 30-40 E. Main St. Bayshore, Inc. v Republic Franklin Ins. Co., 74 AD3d 1330, 1333).
Since there are triable issues of fact as to whether the defendant breached the insurance policy, we decline the plaintiff‘s invitation to search the record and award her summary judgment on her breach of contract cause of action (see Cioffi v Target Corp., 114 AD3d 897, 899; Central Irrigation Supply v Putnam Country Club Associates, LLC, 27 AD3d 684, 685).
The Supreme Court improvidently exercised its discretion in conditionally granting the plaintiff‘s cross motion pursuant to
HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court