Opinion
December 19, 1961
Order entered on June 22, 1961, granting motion of plaintiff for summary judgment, and judgment entered thereon, unanimously reversed upon the law, with costs to the defendant, and motion by plaintiff for summary judgment denied, with $10 costs. Upon the record here, we have concluded that there are triable issues of fact arising in connection with the defense of alleged failure on the part of the insured to co-operate with the defendant as required by the conditions of the policy. (See Seltzer v. Indemnity Ins. Co., 252 N.Y. 330; Ohrbach v. Preferred Acc. Ins. Co., 227 App. Div. 311; Lumbermens Mut. Cas. Co. v. Goldwasser, 7 A.D.2d 849; United States Fid. Guar. Co. v. von Bargen, 7 A.D.2d 872, affd. 7 N.Y.2d 932.)
Concur — Breitel, J.P., Rabin, McNally, Stevens and Eager, JJ.