

Burkha Assets LLC v Seneca Ins. Co. (2017 NY Slip Op 01825)





Burkha Assets LLC v Seneca Ins. Co.


2017 NY Slip Op 01825


Decided on March 15, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 15, 2017

Sweeny, J.P., Renwick, Mazzarelli, Manzanet-Daniels, JJ.


3397 157998/15

[*1]Burkha Assets LLC, Plaintiff-Appellant,
vSeneca Insurance Company, Defendant-Respondent.


Lerner, Arnold & Winston, LLP, New York (Johnathan C. Lerner of counsel), for appellant.
Ken Maguire & Associates PLLC, Garden City (Katherine Maguire of counsel), for respondent.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered April 4, 2016, which denied plaintiff's motion for partial summary judgment on its claim for payment under an insurance policy pursuant to an appraisal of damages due to vandalism, unanimously affirmed, without costs.
The motion court correctly determined that issues of fact exist concerning whether, notwithstanding the appraisal award, defendant was required to provide coverage in the first instance (see Matter of Delmar Box Co. [Aetna Ins. Co.],  309 NY 60 [1955]; Insurance Law § 3404).
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 15, 2017
CLERK


