Greater New York Sav. Bank v. Travelers Ins. Co.
| Decision Date | 13 May 1991 |
| Citation | 570 N.Y.S.2d 122,173 A.D.2d 521 |
| Parties | The GREATER NEW YORK SAVINGS BANK, Respondent, v. TRAVELERS INSURANCE COMPANY, Appellant, Edward N. Rose, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Speyer & Perlberg, Melville, for appellant.
Ahearn, Damanti & Carlson, New York City (Gregory M. Trusso, of counsel), for respondent.
Before MANGANO, P.J., and BRACKEN, KUNZEMAN and MILLER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover on a homeowners insurance policy for fire loss, the defendant Travelers Insurance Company appeals from so much of an order of the Supreme Court, Queens County (Leviss, J.), dated September 15, 1989, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff The Greater New York Savings Bank (hereinafter Greater), in its capacity as the mortgagee of the insured premises, asserted a claim for fire loss under an insurance policy issued by the defendant Travelers Insurance Company (Travelers). Travelers disclaimed coverage approximately nine months after it was first notified of Greater's claim and six months after having been informed that there had been a change in occupancy of the subject premises. The basis of Travelers' disclaimer was Greater's failure to afford prior written notice of the change in occupancy.
Notwithstanding the existence of a "non-waiver" agreement executed by Greater about three months after filing its claim, which provided, inter alia, that Travelers' investigation of the claim would not constitute an admission of liability and reserved all rights and defenses available to Travelers under the policy, the court found that material issues of fact, with regard to the...
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