Opinion
March 19, 1996
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Defendant Rose was the owner of a painting consigned to defendant ACA Gallery, which, upon its sale, was to receive a commission of 40% of the sale price. Insurance for the painting, "[f]or account of whom it may concern", was procured by the Museum and sponsor of the exhibit. After the show, and in the course of returning the painting to Rose's warehouse, the painting was stolen. We agree with the IAS Court that defendant Rose is entitled to the entire $150,000 of proceeds from the insurance policy. The gallery had only a conditional interest in the painting and would earn a commission only if a sale were consummated. This did not occur ( see, Arts and Cultural Affairs Law § 11.01). Since the material facts are undisputed, summary judgment was properly awarded ( see, Stainless, Inc. v Employers Fire Ins. Co., 69 A.D.2d 27, 32, affd 49 N.Y.2d 924).
Concur — Murphy, P.J., Milonas, Rosenberger, Ross and Mazzarelli, JJ.