AVDEYCHIK v. ALLSTATE INSURANCE COMPANY

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

Yevgeny AVDEYCHIK, Respondent, v. ALLSTATE INSURANCE COMPANY, Appellant.

Decided: March 31, 2003

DAVID S. RITTER, J.P., FRED T. SANTUCCI, SANDRA J. FEUERSTEIN and ROBERT W. SCHMIDT, JJ. Bruno, Gerbino & Soriano, LLP, Melville, NY, (Charles W. Benton of counsel), for appellant. Abrams, Gorelick, Friedman & Jacobson, P.C., New York, NY, (Alexander Perchekly of counsel), for respondent.

In an action to recover benefits under an automobile insurance policy, the defendant appeals from an order of the Supreme Court, Nassau County (Joseph, J.), entered May 7, 2002, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff seeks to recover benefits under an automobile insurance policy for the claimed theft and subsequent damage to his vehicle, which was insured by the defendant.   The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting proof that there was a valid policy of insurance covering the subject automobile, a loss occurred, a timely claim was made, and the loss fell within the terms of the policy (see Palmier v. United States Fid. & Guar. Co., 135 A.D.2d 1057, 523 N.Y.S.2d 192;  see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).   In opposition thereto, the defendant's unsupported conjecture and speculation that the vehicle had not been stolen failed to raise a triable issue of fact as to whether the plaintiff intentionally concealed or misrepresented any material fact or circumstance relating to the theft or engaged in fraudulent conduct (see Affatato v. Standard Fire Ins. Co., 277 A.D.2d 264, 715 N.Y.S.2d 657;  Berman v. Federal Ins. Co., 110 A.D.2d 803, 488 N.Y.S.2d 226).   The defendant also failed to raise an issue of fact as to whether the plaintiff made material misrepresentations on his application for insurance (see DiDonna v. State Farm Mut. Auto. Ins. Co., 259 A.D.2d 727, 687 N.Y.S.2d 175).

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.

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