        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

904
CA 14-00359
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


ALI R. ABDULNABI, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

ALLSTATE INSURANCE COMPANY, DEFENDANT-RESPONDENT.


MARCUS & CINELLI, LLP, WILLIAMSVILLE (DAVID P. MARCUS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LEWIS JOHS AVALLONE AVILES, LLP, ISLANDIA (DANIEL A. BARTOLDUS OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered November 25, 2013. The order, among other
things, denied the motion of plaintiff for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages
based on defendant’s alleged breach of an insurance policy issued by
defendant to plaintiff covering real property owned by plaintiff.
Plaintiff submitted a claim to defendant for fire loss, and defendant
refused to pay the claim on the ground that, inter alia, plaintiff’s
intentional conduct caused the fire.

     We conclude that Supreme Court properly denied plaintiff’s motion
for summary judgment. An insurer denying coverage based on the
intentional ignition or procurement of a fire by the insured must
establish “either that the fire was intentionally set or that [the
insured] had a financial motive to destroy his [or her] property for
the insurance proceeds” (Van Nevius v Preferred Mut. Ins. Co. [appeal
No. 1], 280 AD2d 947, 947 [emphasis added]). Here, in the context of
plaintiff’s motion for summary judgment, if the evidence “ ‘indicates
that plaintiff[’s] premises may have been damaged by arson and that
plaintiff[] may have had a motive to see the[] property destroyed by
fire,’ ” a plaintiff-insured’s motion for summary judgment should be
denied (Benjaminov v Republic Ins. Group, 241 AD2d 473, 474; see
R.C.S. Farmers Mkts. Corp. v Great Am. Ins. Co., 56 NY2d 918, 920).
Viewing the evidence in the light most favorable to the nonmoving
party, as we must (see Esposito v Wright, 28 AD3d 1142, 1143), we
conclude that plaintiff failed to meet his initial burden of
establishing that the fire was not intentionally set (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). We further conclude
                                 -2-                           904
                                                         CA 14-00359

that, although plaintiff met his initial burden of establishing that
he did not have a financial motive to destroy the property for the
insurance proceeds, defendant raised a triable issue of fact in that
respect (see generally id.).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
