Opinion
October 2, 1959
Appeal from the Municipal Court of the City of New York, Borough of Queens, DAVID L. DUGAN, J.
Gerard I. Nierenberg and Saul I. Weinstein for appellant-respondent.
Richard J. Relyea, II, for respondents-appellants.
There are triable issues of fact. The insured's failure to obtain or seek the prior consent of the disclaiming insurers is not, as a matter of law, a bar to recovery of the sum expended in settlement of the claim. Plaintiff would be entitled to reimbursement upon showing that the amount paid was reasonable under the circumstances and that the insurers had breached their contract by improperly withdrawing from the defense of the action ( Mayor, Lane Co. v. Commercial Cas. Ins. Co., 169 App. Div. 772; Empire Mut. Ins. Co. v. Bogart, 13 Misc.2d 1094; see, also, Berger Bros. Elec. Motors v. New Amsterdam Cas. Co., 267 App. Div. 333, 340, revd. on other grounds 293 N.Y. 523).
The order denying plaintiff's motion for summary judgment should be unanimously affirmed, without costs. Order granting defendants' cross motion for summary judgment in part unanimously should be reversed, without costs, and motion denied.
Concur — PETTE, HART and BROWN, JJ.
Order affirmed, etc.