G. C. Murphy Co. v. Reserve Insurance — 53 A.D.2d 575

Majority

p. 575

G. C. Murphy Company, Appellant-Respondent, v Reserve Insurance Company, Respondent-Appellant, and American Agency Underwriters, Inc., Respondent. Reserve Insurance Company, Third-Party Plaintiff, v Corroon & Black Corporation, Also Known as Corroon & Black Company of New York Inc., et al., Third-Party Defendants.

Order, Supreme Court, New York County, entered on March 19, 1975, denying plaintiff’s motion for summary judgment against defendant, Reserve Insurance Company, and granting the cross motion of defendant, American Agency Underwriters, Inc., for summary judgment dismissing the complaint as against it and order entered on June 26, 1975, denying plaintiff’s motion for renewal, unanimously affirmed, without costs and without disbursements, and without prejudice to renewal upon the completion of pretrial discovery proceedings herein. The cross appeal of defendant, Reserve, from so much of said order as granted summary judgment to American Agency is unanimously dismissed, without costs and without disbursements, reserve not being a party aggrieved. It is conceded in the record that plaintiff initially paid a large premium for insurance coverage which was later canceled, resulting in an unearned premium due plaintiff of approximately $876,000, which sum was never refunded in cash to plaintiff. Whether or not such sum has, in actuality, been paid to plaintiff by means of the extensive

p. 576

credits alleged in the record cannot, at this stage of the litigation, be determined with finality so as to justify an award of summary judgment. The replacement insurers, prior to canceling the policies, made good on a $1,000,000 claim asserted by plaintiff. Their denial, made in the related Federal litigation, that they ever received any premium payments, merely serves to render more unclear the claim of payment raised in defense by Reserve. Concur—Stevens, P. J., Kupferman, Murphy, Capozzoli and Yesawich, JJ.