Opinion
November 4, 1976
Order, Supreme Court, New York County, entered March 18, 1976, granting defendants' motion for summary judgment, and judgment thereon entered May 14, 1976, are unanimously affirmed. Respondents shall recover of appellant one bill of $60 costs and disbursements of these appeals. In this suit, by insured seller on an export credit insurance policy, plaintiff contends that the loss occurred: (a) because First National City Bank, its agent for collection, failed to transmit to plaintiff funds made available to said agent for payment of the drafts for the goods sold; and (b) perhaps because the bank, in violation of its instructions, released the goods and documents of title to the buyer without receiving the appropriate acceptance of the drafts which accompanied the documents of title. In either case the loss is excluded from the policy protection as a "loss due to the fault of the insured or its agent." Indeed, in the former case, the loss is not even one arising out of "failure of the buyer to pay to the insured" which is the risk insured against.
Concur — Markewich, J.P., Lupiano, Silverman, Lane and Yesawich, JJ.