Buttignol Constr. Co. v. Allstate Ins. Co.
| Decision Date | 30 December 1965 |
| Citation | 266 N.Y.S.2d 982,17 N.Y.2d 476 |
| Parties | , 214 N.E.2d 162 ,BUTTIGNOL CONSTRUCTION CO., Inc., Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 22 A.D.2d 689, 253 N.Y.S.2d 172.
Insured brought action against insurer. The first cause of action was on a fire policy to recover amount of fire loss allegedly sustained by insured. The second cause of action was to recover compensatory and punitive damages based on alleged fraud and deceit of insurer in making allegedly false representations as to its insurance policies. The second cause of action alleged that insured purchased a fire policy from insurer in reliance on representations published, circulated, and advertised by the insurer to the general public that its insurance contracts afforded insureds security and complete protection and that any lossess suffered by insureds would be settled and paid promptly, and that such representations were allegedly false and fraudulent, and that, in pursuance of that scheme, insurer failed and refused to pay for loss sustained by insured because of fire.
The Supreme Court, Special Term, Westchester County, John J. Dillon, J., entered an order denying a cross motion by the insurer for summary judgment dismissing the amended complaint, and the insurer appealed.
The Appellate Division entered an order modifying and affirming the order of the Special Term by granting the cross motion as to the second cause of action and by severing the cause of action and dismissing it.
The insured appealed to the Court of Appeals, contending in the Court of Appeals that insurer's cross motion was not sufficiently supported by affidavit submitted thereon and that therefore plaintiff was not required to come forward with facts in support of its second cause of action and that the facts were peculiarly within knowledge and control of insurer, and that insured should therefore be afforded an examination before trial and discovery and inspection. The insurer contended in the Court of Appeals that insured had failed to present any evidentiary matter sufficient to warrant a trial of the allegations of its second cause of action and that therefore summary judgment dismissing the alleged cause of action was properly granted.
Order affirmed, with costs.
All concur.
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