Opinion
December 10, 1979
In an action by an insurance company for restitution of a claim paid to an insured, the defendant appeals (by permission) from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated November 16, 1978, which, inter alia, (1) reversed an order of the First District Court, Mineola, Nassau County, entered May 23, 1978, denying summary judgment in favor of the plaintiff, and (2) granted the motion for summary judgment in favor of plaintiff. Order affirmed, with $50 costs and disbursements. Defendant, Edgar Sabbeth Plywood Flooring Corp., a supplier of specialized wood and lumber, filed a claim with plaintiff, its insurer, with respect to what was believed to be a lost shipment of oak flooring intended for the third-party defendant, Hall Flooring Corp. Plaintiff, upon investigation, paid the full claim less a $250 deductible. It is now conceded by all parties, however, that subsequent to plaintiff's payment of the claim, the shipment of oak flooring believed lost (and which "loss" plaintiff had reimbursed against), was ascertained to have been actually delivered to the third-party defendant, albeit very late. Under these circumstances, we agree with the Appellate Term that summary judgment in favor of the plaintiff for restitution of the insurance proceeds paid was proper (see 18 Couch, Insurance [2d ed], § 74.189, pp 363-364; cf. Schleider v Maryland Cas. Co., 226 App. Div. 50, 52, affd without opn 252 N.Y. 598). Mangano, J.P., Gulotta, Cohalan and Gibbons, JJ., concur.