From Casetext: Smarter Legal Research

Truscelli v. Fireman's Fund Ins. Companies

Appellate Division of the Supreme Court of New York, Second Department
Feb 29, 1988
137 A.D.2d 806 (N.Y. App. Div. 1988)

Opinion

February 29, 1988

Appeal from the Supreme Court, Richmond County (Leone, J.).


Ordered that the order is affirmed, with costs.

Summary judgment is a drastic remedy which only should be granted when there is no doubt as to the existence of an arguable triable issue of fact (see, Andre v Pomeroy, 35 N.Y.2d 361). At bar, the opposing papers of the respondent Fireman's Fund Insurance Companies were sufficient to raise a question as to whether the plaintiff's boat was being used for a commercial purpose and therefore that its loss was not covered by the insurance policy in question at the time it was destroyed by fire. Accordingly, summary judgment was properly denied. Further, contrary to the plaintiff's contention, we do not find that the respondent, which initially disclaimed coverage on the basis of a breach of warranty, waived the right to assert the affirmative defense of material misrepresentation in its answer (see, Ocean-Clear, Inc. v Continental Cas. Co., 94 A.D.2d 717). Thompson, J.P., Brown, Lawrence and Weinstein, JJ., concur.


Summaries of

Truscelli v. Fireman's Fund Ins. Companies

Appellate Division of the Supreme Court of New York, Second Department
Feb 29, 1988
137 A.D.2d 806 (N.Y. App. Div. 1988)
Case details for

Truscelli v. Fireman's Fund Ins. Companies

Case Details

Full title:JOSEPH TRUSCELLI, Appellant, v. FIREMAN'S FUND INSURANCE COMPANIES…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 29, 1988

Citations

137 A.D.2d 806 (N.Y. App. Div. 1988)