Kahan Industries, Inc. v. United Pacific Insurance

In an action, inter alia, to recover damages for breach of a fire insurance policy, the plaintiff appeals from an order of the Supreme Court, Kings County (Lodato, J.), entered October 16, 1986, which denied its motion to dismiss the [547] respondent’s affirmative defenses and for partial summary judgment. Ordered that the order is affirmed, with costs. The evidence submitted by the parties on the plaintiff’s motion to dismiss the respondent’s affirmative defenses and for partial summary judgment shows the existence of issues of fact as to whether the plaintiff’s president was involved in the setting of the fires at his place of business and, therefore, whether the respondent is liable to its insured (see, R.C.S. Farmers Mkts. Corp. v Great Am. Ins. Co., 56 NY2d 918; Gallo Painting v Aetna Ins. Co., 49 AD2d 746; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700). The motion was, therefore, properly denied (see, Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540; Suslensky v Metropolitan Life Ins. Co., 180 Misc 624, affd 267 App Div 812, lv denied 270 App Div 819). Mangano, J. P., Brown, Eiber and Harwood, JJ., concur.