Sunbright Fashions, Inc. v. Greater New York Mut. Ins. Co.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before McGIVERN; STEUER
• Citation: Sunbright Fashions, Inc. v. Greater New York Mut. Ins. Co., 310 N.Y.S.2d 760, 34 A.D.2d 235 (N.Y. App. Div. 1970)
• Decision Date: 26 May 1970
• Parties: SUNBRIGHT FASHIONS, INC., Plaintiff-Respondent, v. GREATER NEW YORK MUTUAL INSURANCE COMPANY, Defendant-Appellant.

Page 760

310 N.Y.S.2d 760

34 A.D.2d 235

SUNBRIGHT FASHIONS, INC., Plaintiff-Respondent, v. GREATER NEW YORK MUTUAL INSURANCE COMPANY, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 26, 1970.

Simon Greenhill, New York City, of counsel (Michael L. Ingram, New York City, with him on the brief; Greenhill & Speyer, New York City, attorneys), for appellant.

Isidore Sapir, New York City, for respondent.

Before McGIVERN, J.P., and MARKEWICH, STEUER and BASTOW, JJ.

STEUER, Justice:

Plaintiff sues on a policy of insurance against theft. The loss claimed is for merchandise on the premises of plaintiff's contractor and the value fixed is $30,000, the limit of the policy. About one--fourth in value of the merchandise alleged to have been stolen consisted of an item of 1,496 skirts. As to these the plaintiff's president testified under oath on an examination had pursuant to the policy. His testimony was that these skirts had been cut and sent to another contractor for sewing. The contractor returned them, ostensibly having completed the operation. Plaintiff thereupon sold them to several customers. All of these returned the skirts for defects in the sewing and plaintiff then sent them, to have the defective sewing corrected, to the contractor from whom they were allegedly stolen. The witness substantiated his testimony by submitting documents, including the truckman's receipts for delivery to and from the original contractors, invoices of the sales to the customers, and copies of the credit memoranda issued to those customers. On an adjourned date the witness admitted that this version of the history of the skirts was completely false and that the supporting documents had been made up for the purposes of the claim. The skirts had not been sewn by the contractor, had never been sold and, of course, never returned and credited. They had in fact been acquired at a much earlier date from a predecessor corporation. The witness further conceded that other parts of his testimony were untruthful.

The policy contained the following provision:

'This entire policy shall be void if the Assured has concealed or misrepresented in writing, or otherwise, any material facts or circumstances concerning the insurance or the subject thereof, or if the Assured shall make any attempt to defraud the Company either before or after loss.'

On these facts the defendant moved for summary judgment. Plaintiff admits the falsity of the testimony and that it was repeated in answers to a set of interrogatories. Plaintiff claims that nevertheless the skirts were on the premises of the contractor and were stolen.

Special Term denied the motion on the ground that there were issues of fact as to whether there was an intent to defraud. We see no such issue. While it is true that unintentional fraud or false swearing or the...