Opinion
2001-09424
Argued October 31, 2002.
November 25, 2002.
In an action, inter alia, to recover damages for breach of an insurance policy, the defendant CGU Insurance Company, f/k/a General Accident Insurance Company appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated September 4, 2001, which denied its motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(1).
Speyer Perlberg, LLP, Melville, N.Y. (Dennis M. Perlberg and Gina M. Fortunato of counsel), for appellant.
Ruskin, Moscou, Evans Faltischek, P.C., Uniondale, N.Y. (Christine McInerney and Kellie E. Lagitch of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the appellant's contention, it was not entitled to dismissal of the complaint based upon documentary evidence of the subject insurance policy (see CPLR 3211[a][1]; Trade Source v. Westchester Wood Works, 290 A.D.2d 437). The policy did not conclusively establish a defense, since the plaintiff raised significant issues of fact as to precisely when the underlying property damage occurred and whether the appellant was notified of the damage as soon as practicable (see Kim v. Maher, 226 A.D.2d 350; Reynolds Metal Co. v. Aetna Cas. Sur. Co., 259 A.D.2d 195).
The appellant's remaining contention is without merit.
SANTUCCI, J.P., McGINITY, LUCIANO and SCHMIDT, JJ., concur.