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

1015
CA 15-01197
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


JOAQUINA MOSES, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GEICO INSURANCE COMPANY, DEFENDANT-RESPONDENT.


LAW FIRM OF GARY R. EBERSOLE, ESQ., GRAND ISLAND (GARY R. EBERSOLE OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICES OF DANIEL R. ARCHILLA, BUFFALO (LAUREN GAUTHIER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered September 15, 2014. The order granted
defendant’s motion for summary judgment dismissing the complaint and
denied plaintiff’s cross motion for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, defendant’s motion is
denied, the complaint is reinstated and plaintiff’s cross motion is
granted.

     Memorandum: Plaintiff commenced this action alleging that
defendant wrongfully failed to honor its obligations under an
automobile insurance policy that was in effect when plaintiff’s
vehicle was allegedly stolen and then later recovered, indisputably
“destroyed by fire.” After the vehicle was stolen but before it was
recovered, defendant disclaimed coverage on the ground that “theft
does not qualify as a loss as defined in your policy contract.” Once
the vehicle was recovered, plaintiff notified defendant, whose
representative allegedly informed her that her claim was denied.

     We conclude that Supreme Court erred in granting defendant’s
motion for summary judgment dismissing the complaint, upon determining
that plaintiff would be unjustly enriched by any additional
compensation and that such compensation would violate the provisions
of the policy requiring payments to be made to plaintiff’s financing
company. We further conclude that the court erred in denying
plaintiff’s cross motion for partial summary judgment seeking a
determination that the insurance contract was “operative and binding
upon the Defendant.”

     Contrary to defendant’s contentions, the issues raised by
plaintiff on appeal were presented to the trial court and are
                                 -2-                          1015
                                                         CA 15-01197

therefore preserved for our review. With respect to the merits, we
agree with plaintiff that the court erred in granting defendant’s
motion on the ground that plaintiff would be unjustly enriched were
defendant to fulfill its contractual obligations. Defendant failed to
establish as a matter of law that the loan for the automobile had been
forgiven by the financing company. The mere fact that the financing
company had not pursued any legal remedies against plaintiff does not
establish that the loan was forgiven. Indeed, plaintiff testified at
her deposition that the loan still appeared on her credit report and
that she was unsure if she would be required to repay that loan.

     We further agree with plaintiff that defendant “failed to
demonstrate that the [Loss Payable Clause] provision upon which it
relies was a part of [the insurance] contract” and thus failed to
establish its entitlement to judgment as a matter of law on that
ground as well (Mentesana v Bernard Janowitz Constr. Corp., 36 AD3d
769, 771; see Hallmark Synthetics Corp. v Sumitomo Shoji N.Y., 26 AD2d
481, 484-485, affd 20 NY2d 871).

     Under the clear and unambiguous terms of the insurance policy,
defendant promised to pay plaintiff the “actual cash value,” less a
deductible, for loss caused by, inter alia, theft or fire. Inasmuch
as defendant does not dispute that the vehicle was “destroyed by
fire,” plaintiff has established that defendant’s obligations under
the insurance policy were operative and binding on defendant and that
defendant is contractually obligated to perform. Defendant failed to
raise a triable issue of fact (see generally Zuckerman v City of New
York, 49 NY2d 557, 562). We thus grant plaintiff’s cross motion for
partial summary judgment on liability. We note with respect to the
issue of damages that, although plaintiff has not established as a
matter of law that the Loss Payable Clause provision upon which
defendant relies is not part of the contract, that provision concerns
whom defendant must pay under the policy, i.e., plaintiff or the
lienholder, and that issue can be resolved by the court during the
damages inquest.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
