Opinion
February 25, 1971
Order, Supreme Court, New York County, entered September 9, 1970, denying summary judgment, and granting cross motion for interpleader and for leave to pay into court a certain sum of money, unanimously modified, on the law, to the extent of granting partial summary judgment against all the defendants, except Nassau Insurance Company, in the amount in excess of the adverse claims, which amount is to be determined on an assessment unless the parties agree thereto, and as so modified, affirmed, without costs and without disbursements. The defendant insurance companies, with the exception of Nassau Insurance Company, admitted their liability for a fire loss under policies, the claim for which has been assigned by the assured to plaintiff. The only asserted defense of the defendant companies was their receipt of notices of various claims by creditors of the insured. With the exception of Nassau Insurance Company, the defendants seek interpleader and to deposit their conceded indebtedness into court. Since all of the defendant insurance companies, except Nassau Insurance Company, admit their liability to pay or deposit the loss, the motion should have been granted to the extent above indicated, with a severance of the cause of action against Nassau Insurance Company. Plaintiff concedes the opposing affidavit by Nassau is sufficient to defeat summary judgment at this stage of the proceeding. The questions of fact, however, if any, are very slim. Sua sponte we grant a preference to the plaintiff against Nassau, the issues to be tried jointly at the time of the assessment (see Padilla v. Greyhound Lines, 29 A.D.2d 495) conditioned on the plaintiff filing the proper notices and payment of fees. Leave to renew is granted to Rusch on proof that the indebtedness of Princess to Rusch at the time of the loss exceeded the amount due on the policies. Settle order on notice.
Concur — McGivern, J.P., Nunez, McNally, Steuer and Tilzer, JJ.