Opinion
July 6, 1967
Appeal from an order and judgment of the Supreme Court, Albany County, granting respondent's motion to strike appellant's answer and for summary judgment in the sum of $691.27 with interest from March 20, 1964. In our opinion there are present here factual issues as to whether the notice of loss given constituted notice to the appellant and whether the loss payable indorsement under which this claim is brought was authorized by appellant which require a plenary trial and accordingly summary judgment should not have been granted. At such trial even though the loss took place only three months after the purchase it will be incumbent on respondent to prove the extent of the destruction of the vehicle involved and the value thereof at the time of destruction. However, there is no foundation in appellant's argument that there must have been a default by the owner and repossession by respondent before respondent could claim as a loss payee. Finally we would suggest that on remand further exploration be made of exactly what is the amount payable to the respondent. The collision portion of the policy provides that only $25 is deductible rather than $50 utilized by the respondent. Furthermore, since the loss payable indorsement is not a separate insurance policy but rather merely affects the appointment of the respondent to receive the proceeds of the insured owner's policy "as interest may appear", it is possible that even the $25 deduction would not apply to respondent's payment if the loss sustained exceeded by more than $25 the amount due respondent. Consideration should also be given to ascertaining what is the actual "interest" of the respondent. Judgment and order reversed, on the law and the facts, and motion denied, with costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Grabrielli, JJ., concur in memorandum by Reynolds, J.