BRZOZOWSKI v. Mario Mosteirin & Bender Insurance Agency, Third-Party Defendant.

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

Robert BRZOZOWSKI, Respondent, v. ALLSTATE INSURANCE COMPANY, Appellant, Allbest Insurance Agency AIA Assoc., Defendant Third-Party Plaintiff, Mario Mosteirin & Bender Insurance Agency, Third-Party Defendant.

Decided: September 23, 2002

MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, HOWARD MILLER and REINALDO E. RIVERA, JJ. Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Steven D. Brower of counsel), for appellant. Stephen David Fink, Forest Hills, NY, for respondent. Troisi & Markowitz, Jericho, N.Y. (Michael A. Troisi of counsel), for defendant third-party plaintiff Allbest Insurance Agency AIA Assoc.

In an action, inter alia, to recover damages for breach of an insurance policy, the defendant Allstate Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Posner, J.), dated September 10, 2001, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff leased a vehicle and obtained automobile insurance, including theft coverage, from the appellant.   The vehicle was allegedly stolen, but the appellant disclaimed coverage on grounds which are not relevant to this appeal.   The plaintiff then commenced this action, among other things, to recover on the policy.   The vehicle was ultimately recovered nearly two years after the alleged theft.   The appellant subsequently moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it had no liability under the terms of the policy because the vehicle was recovered with minimal damage.

The Supreme Court properly concluded that the appellant did not establish its entitlement to judgment as a matter of law.   If it is ultimately determined that the appellant breached the contract of insurance by improperly disclaiming coverage, the appellant may be liable under the policy for the plaintiff's loss because the vehicle was not recovered within a reasonable time after the alleged theft (see Oppenheimer v. Baker & Williams, 225 App.Div. 58, 60, 232 N.Y.S. 5).   Consequently, the appellant's motion was properly denied.

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