Gray v. Tri-State Consumer Ins. Co.

• Court: New York Supreme Court — Appellate Division
• Citation: Gray v. Tri-State Consumer Ins. Co., 157 A.D.3d 938, 70 N.Y.S.3d 526 (N.Y. App. Div. 2018)
• Decision Date: 31 January 2018
• Docket Number: 2015–12445,Index No. 705510/13
• Parties: Michelle GRAY, respondent, v. TRI–STATE CONSUMER INSURANCE COMPANY, appellant.

157 A.D.3d 938

70 N.Y.S.3d 526

Michelle GRAY, respondent,

v.TRI–STATE CONSUMER INSURANCE COMPANY, appellant.

2015–12445

Index No. 705510/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 13, 2017

January 31, 2018

Kaufman Dolowich & Voluck LLP, Woodbury, N.Y. (Eric B. Stern of counsel), for appellant.

Greenblatt & Agulnick, P.C., Great Neck, N.Y. (Scott E. Agulnick and Steven A. Kotchek of counsel), for respondent.

L. PRISCILLA HALL, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of a homeowner's insurance policy, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Gavrin, J.), entered December 16, 2015, as denied its motion for summary judgment dismissing the complaint and on its counterclaim to recover damages for breach of the concealment and fraud provision of the policy, and conditionally granted the plaintiff's cross motion pursuant to CPLR 3126 to strike its answer unless it served a "meaningful" response to the plaintiff's supplemental demand for discovery and inspection within a specified time.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof conditionally granting the plaintiff's cross motion pursuant to CPLR 3126 to strike the defendant's answer unless the defendant served a "meaningful" response to the plaintiff's supplemental demand for discovery and inspection within a specified time, and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and a subsequent order of the same court entered July 28, 2016, granting the plaintiff's motion to strike the defendant's answer based upon the defendant's alleged failure to comply with the conditional order entered December 16, 2015, is vacated.

After her home was damaged by a fire, the plaintiff commenced this action, inter alia, to recover damages for breach of a homeowner's insurance policy. In its amended answer, the defendant insurance carrier asserted a counterclaim to recover damages for breach of the concealment and fraud provision of the policy, which stated that the defendant does not provide coverage for an insured who "[i]ntentionally concealed or misrepresented any material fact or circumstance," or "[e]ngaged in fraudulent conduct relating to this insurance." In the order appealed from, the Supreme Court, inter alia, denied the defendant's motion for summary judgment dismissing the complaint and on its counterclaim, and conditionally granted the plaintiff's cross motion pursuant to CPLR 3126 to strike the defendant's answer unless the defendant served a "meaningful" response to the plaintiff's supplemental demand for discovery and inspection within a specified time. The defendant appeals.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint and on its counterclaim to recover damages for breach of the concealment and fraud provision of the policy. The evidence submitted by the defendant revealed the existence of triable issues of fact as to whether the defendant breached the subject insurance policy by failing to pay the claim within 60 days after it received proof of loss and reached an agreement with the plaintiff as to the amount of the loss (see 232 Broadway Corp. v. Calvert Ins. Co., 149 A.D.2d 694, 695–696, 540 N.Y.S.2d 324 ). Further, although the defendant established its prima facie entitlement to judgment as a matter of law on the issue of whether the plaintiff breached the concealment and fraud provision of the policy and thus vitiated the defendant's obligation to provide coverage, in opposition, the plaintiff raised a triable issue of...