Opinion
March 5, 1985
Appeal from the Supreme Court, New York County (Price, J.).
This is an action under an all risks insurance policy to recover the value of property allegedly lost in the course of a burglary. Although plaintiff's premises were the subject of a burglary, it is clear, as acknowledged by Special Term, that a factual issue was raised with regard to the value of the property that was taken in the course of the burglary. Special Term did not appreciate, however, that the totality of the circumstances presents at least a factual issue as to whether plaintiff's claim with regard to what was taken and its value was intentionally misstated. If it was intentionally misstated, a defense to any recovery under the policy would clearly be presented. Accordingly, it was error to grant plaintiff's motion for summary judgment with regard to liability.
Concur — Sandler, J.P., Asch, Fein and Kassal, JJ.