Opinion
April 5, 1985
Appeal from the Supreme Court, Oneida County, Sullivan, J.
Present — Dillon, P.J., Boomer, Green, O'Donnell and Schnepp, JJ.
Order unanimously affirmed, with costs. Memorandum: Defendant insurance company appeals from an order denying its motion for summary judgment dismissing plaintiff's action upon a fire insurance policy issued by the company. In making its motion, defendant relied upon the provisions of the standard fire insurance policy (Insurance Law § 168 [5]) that void the policy if the fire occurs when the premises have been unoccupied for a period in excess of 60 days and if the insured willfully conceals or misrepresents any material fact or circumstance concerning the insurance policy.
We agree with Special Term that the copy of the policy attached to plaintiff's affidavit does not contain the provisions relied upon by defendant. We add that defendant has not sustained its burden of proving that the terms of the standard fire insurance policy form (Insurance Law § 168 [5]) should be read into the policy. Insurance Law § 168 (6) provides that under certain conditions neither a fire policy nor a multiperil policy need comply with the terms of the standard fire insurance policy form. The policy in the record is headed, "Special Multi-Peril Policy" and its contents indicate that it is a multiperil policy rather than a standard fire insurance policy. Thus, there is, at least, a question of fact whether the provisions relied upon by defendant should be considered a part of the policy.
The fact that plaintiff alleged in his complaint that the policy issued by defendant was a standard fire insurance policy does not change the result. The facts now show otherwise and the complaint may be amended ( see, Curry v. Mackenzie, 239 N.Y. 267, 272). Technical defects in the pleading of an adversary are not available to an applicant for summary judgment ( Werfel v Zivnostenska Banka, 287 N.Y. 91, 93; Curry v. Mackenzie, supra; Infusino v. Maggio, 24 A.D.2d 536).