594 N.Y.S.2d 192 | N.Y. App. Div. | 1993
—Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered February 26, 1992, which inter alia, denied defendant’s motion to dismiss the complaint, unanimously affirmed, with costs.
Plaintiff seeks to recover under a "Furrier’s Block” policy for loss due to an alleged burglary at its premises. The rejection of the claim by defendant carrier at this juncture rests solely upon a series of inferences that the vault from which the furs were stolen may not have been locked by the plaintiff after the close of business, as required by the policy. The question of whether the vault was left unlocked the night before the loss is, on this record, left unresolved. At most, defendant has shown that two of the plaintiff’s principals cannot remember whether they locked the vault that evening. A mere scintilla of evidence sufficient to justify a suspicion is not sufficient to support a finding upon which legal rights and obligations are based (Matter of Stork Rest. v Boland, 282 NY 256, 273-274). At this juncture, it was proper to deny summary judgment. Concur — Sullivan, J. P., Carro, Rosenberger, Ellerin and Kupferman, JJ.
