Castillo v. General Accident Insurance of America

Order, Appellate 113 Term, First Department, entered July 13, 1984, which affirmed an order of the Civil Court (E. Goodman, J.), entered February 14, 1984, granting summary judgment to the plaintiff insured on the issue of liability and directing a hearing on damages, reversed, on the law, without costs, and the motion for summary judgment is denied. In an action to recover under an insurance policy for damages sustained as a result of the theft of an automobile registered in the plaintiff’s name, which was found totally vandalized, plaintiff moved for summary judgment. In its opposing papers defendant pointed to a variety of allegedly suspicious circumstances which, defendant claimed presented an issue of plaintiff’s credibility that could only properly be determined on trial. Among the circumstances set forth were the following. First, shortly before the alleged theft which gave rise to the instant action, plaintiff had recovered from defendant on an insurance claim arising out of the alleged theft of the same automobile. Second, plaintiff’s claim in his moving affidavit that the vehicle was recovered by the police is contradicted by the police report which states that the vehicle was recovered by plaintiff. Third, on the prior theft the estimate of the damage and the work of repair was done by a company for which plaintiff’s brother worked. Special Term granted plaintiff’s motion for summary judgment on liability and directed a hearing with regard to damages. The Appellate Term affirmed. We disagree, finding that the circumstances disclosed in the record raise an issue of plaintiff’s credibility with regard to a matter within his exclusive knowledge sufficient to require a trial. (See, Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541; Suslensky v Metropolitan Life Ins. Co., 180 Misc 624, affd 267 App Div 812.) Concur — Murphy, P. J., Sandler, Carro, Rosenberger and Ellerin, JJ.