Opinion
November 14, 1983
In an action to recover on an insurance policy, defendant appeals from an order of the Supreme Court, Kings County (Pincus, J.), dated August 13, 1982, which denied its motion for summary judgment. Order affirmed, with costs. (See Bonus Warehouse v Great Atlantic Ins. Co., 93 A.D.2d 615.) We note that Lentini Bros. Moving Stor. Co. v New York Prop. Ins. Underwriting Assn. ( 53 N.Y.2d 835, 837) is inapposite since the Court of Appeals specifically based its decision in that case upon "the insured's unexcused and willful refusal to comply". We find no such unexcused and willful refusal to comply in the instant case. Mollen, P.J., Damiani, Mangano and Gulotta, JJ., concur.