Opinion
2005-1824 NC.
Decided October 5, 2006.
Appeal from an order of the District Court of Nassau County, Second District (Anna R. Anzalone, J.), dated September 13, 2004. The order denied defendant's motion for summary judgment.
Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.
PRESENT: RUDOLPH, P.J., McCABE and LIPPMAN, JJ.
Plaintiff brought the instant action to recover from defendant insurer $11,500, which was the appraised value of a diamond ring which had been stolen from the residence of Alfred F. Garbarino, Jr., two days before his death. Mr. Garbarino was the holder of a tenant's policy of insurance with defendant at the time of the loss. The policy had a $1,000 limit for loss by theft of jewelry.
Defendant established its prima facie entitlement to summary judgment by submitting an affidavit of the claims person familiar with the matter, a copy of the policy in effect at the time of the theft which indicated that there was a $1,000 limit on coverage for jewelry lost by theft, a declarations sheet indicating the policy period and the amount of coverage, as well as a copy of a check issued by the insurer indicating that it paid $1,000 to the estate to cover the loss. The burden then shifted to plaintiff to proffer evidence in admissible form to demonstrate the existence of a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Plaintiff's submissions failed to do so. Those submissions, which, inter alia, consisted of a letter from defendant confirming receipt of the claim, and an unsworn appraisal report, did not support plaintiff's claim that there was no limitation on coverage. Moreover, the document entitled "Important Notice Concerning Your Homeowners Policy Coverage," which referred to certain changes in the policy, contained no language changing the terms with respect to limitations on coverage for the loss of jewelry. Although the court below found that there were questions of fact with respect to the specific policy applicable to the claim, it is our opinion that the court below erred in denying defendant's motion for summary judgment, and the complaint should therefore be dismissed.
Although the action was brought by the estate rather than by the executor in his representative capacity, under the circumstances, the misdescription in the caption may be considered a "mere irregularity" ( Rosenberg v. Caban, 16 NY2d 905, 906). We note that the complaint was verified by the executor of the estate.
Rudolph, P.J., McCabe and Lippman, JJ., concur.