Opinion
February 22, 1982
In an action to recover on a fire insurance policy, the defendant insurance company appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Buschmann, J.), dated July 2, 1981, as granted that branch of plaintiff's motion which sought to strike defendant's first and seventh affirmative defenses. Order modified, on the law, by deleting the second decretal paragraph, which granted the motion as to defendant's seventh affirmative defense, and substituting a provision denying the motion as to that defense. As so modified, order affirmed insofar as appealed from, without costs or disbursements. The stay contained in this court's order dated July 30, 1981 is vacated. On this record, it cannot be said that, as a matter of law, no triable issue of fact exists as to whether the fire at plaintiff's business premises occurred while the hazard was increased by means within the control or knowledge of the insured (see V.F.V. Constr. Co. v. Aetna Ins. Co., 56 A.D.2d 598; cf. Anderson v. General Acc. Fire Life Assur. Corp., 58 A.D.2d 568). We have considered defendant's remaining contention and find it to be without merit. Titone, J.P., Gibbons, Weinstein and Rubin, JJ., concur.