Atlas Feather Corp. v. Pine Top Ins. Co.

Decision Date09 March 1987
PartiesATLAS FEATHER CORP., Respondent-Appellant, v. PINE TOP INSURANCE COMPANY, Appellant-Respondent.
CourtNew York Supreme Court — Appellate Division

Ginsberg & Caesar, P.C., New York City (Robert D. Becker, of counsel), for appellant-respondent.

David G. Mendelsohn, New York City (Bernard I. Scherer, of counsel), for respondent-appellant.

Before MANGANO, J.P., and THOMPSON, BROWN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a consolidated action to recover under a policy of insurance, (1) the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Williams, J.), dated October 18, 1985, as granted those branches of the plaintiff's motion which were to dismiss its first, second and fifth affirmative defenses and denied that branch of its cross motion which was for partial summary judgment, and (2) the plaintiff cross-appeals from so much of the same order as denied that branch of its motion which was to dismiss the defendant's third affirmative defense.

ORDERED that the order is modified, on the law, by deleting the provisions thereof which (1) granted those branches of the plaintiff's motion which were to dismiss the first, second and fifth affirmative defenses, (2) denied that branch of the plaintiff's motion which was to strike the third affirmative defense, and (3) denied that branch of the defendant's cross motion which was for partial summary judgment, and substituting therefor provisions (1) denying those branches of the plaintiff's motion which were to strike the first, second, and fifth affirmative defenses, (2) granting that branch of the plaintiff's motion which was to strike the third affirmative defense, and (3) granting that branch of the defendant's cross motion which was for partial summary judgment, to the extent of limiting the plaintiff's recovery on the first cause of action to $50,000 and limiting the plaintiff's recovery on the second cause of action to $1,600,000. As so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The court erred in refusing to strike the third affirmative defense, pursuant to which the defendant alleged that the plaintiff knowingly made false statements and misrepresentations in order to procure the policy of insurance in issue. The defendant failed to offer any reasonable explanation as to why the facts essential to justify opposition to dismissal of that defense...

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7 cases
  • 1691 Fulton Ave. Assocs., LP v. Watson, 58639/2016.
    • United States
    • New York Civil Court
    • May 30, 2017
    ...A defense should not be stricken where there are questions of fact requiring trial. See, e.g., Atlas Feather Corp v. Pine Top Ins. Co. (128 A.D.2d 578, 578–579, 512 N.Y.S.2d 844 [2nd Dep't 1987] ); Martense v. O'Leary (40 Misc.3d 1201[A] ), 972 N.Y.S.2d 144 [Dist Ct Nassau Co 2013] )(denyin......
  • 1540 Wallco, Inc. v. Smith, 25657/2016.
    • United States
    • New York Civil Court
    • January 9, 2017
    ...). A defense should not be stricken where there are questions of fact requiring trial. See, e.g., Atlas Feather Corp v. Pine Top Ins Co (128 A.D.2d 578, 578–579, 512 N.Y.S.2d 844 [2nd Dep't 1987] ); Martense v. O'Leary (40 Misc.3d 1201[A] ), 972 N.Y.S.2d 144 [Dist Ct Nassau Co 2013] ) (deny......
  • Jacob Marion, LLC v. Jones
    • United States
    • New York Supreme Court Appellate Division
    • January 30, 2019
    ...123valid leases, triable issues of fact preclude dismissal pursuant to CPLR 3211(b) (see Atlas Feather Corp. v. Pine Top Ins. Co. , 128 A.D.2d 578, 578–579, 512 N.Y.S.2d 844 ). These triable issues of fact also preclude granting summary judgment to the plaintiff on the complaint, as the pla......
  • Bennion v. Allstate Ins., PLAINTIFF-RESPONDENT-APPELLAN
    • United States
    • New York Supreme Court Appellate Division
    • June 8, 2001
    ...A.D.2d 195). Thus, the damages sought in the first cause of action may not exceed the $25,000 policy limit (see, Atlas Feather Corp. v Pine Top Ins. Co., 128 A.D.2d 578, 579; see also, Valentin v City of New York, 187 A.D.2d 343, 345, affd 82 N.Y.2d Contrary to the contention of plaintiff o......
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