Opinion
April 22, 1996
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the order dated February 8, 1995, is reversed insofar as appealed from, on the law, with costs, so much of the order dated December 1, 1994, as granted the plaintiff's motion for summary judgment to the extent of declaring that an insurance policy covering the plaintiff's loss was in effect is vacated, and the plaintiff's motion for summary judgment is denied in its entirety.
The appellant contends that the Supreme Court erred by declaring that an insurance policy covering the plaintiff's loss was in effect because the plaintiff attempted to defraud the appellant by submitting false proof to substantiate its loss. Although the Supreme Court's declaration was premature, under the circumstances of this case, we reject the appellant's contention that the record establishes, as a matter of law, that the plaintiff intentionally engaged in fraudulent conduct thereby voiding the insurance policy ( see, Saks Co. v. Continental Ins. Co., 23 N.Y.2d 161, 165; Orr v. Continental Cas. Co., 205 A.D.2d 599, 600; Kyong Nam Chang v. General Acc. Ins. Co., 193 A.D.2d 521). While the defendant established that the minute book which the plaintiff submitted as proof of the value of the stolen jewelry was not a contemporaneous record of the jewelry donated by its parishioners, there is an issue of fact about whether the book was created with a willful intent to defraud or to misrepresent material facts.
We have examined the defendant's remaining contentions and find that they are without merit. Santucci, J.P., Altman, Krausman and Goldstein, JJ., concur.