Herbert J. Caplan, Inc. v. Hardware Mutual Casualty Co.

In an action upon an insurance policy, in which defendant has asserted a counterclaim for fraud, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated October 1, 1974, as (1) denied its motion for summary judgment, (2) granted the branch of defendant’s cross motion which sought summary judgment in "the main action” and (3) in denying the branch of defendant’s cross motion for summary judgment on its counterclaim, severed the counterclaim from the main action. Order modified by (1) deleting from the first decretal paragraph thereof, which granted the branch of defendant’s motion which sought summary judgment dismissing the complaint, the word "granted” and substituting therefor the word "denied” and (2) deleting the second and fifth decretal paragraphs thereof. As so modified, order affirmed insofar as appealed from, without costs. Under the circumstances, there is a triable issue of fact as to whether defendant should be estopped from raising the defense of plaintiffs failure to institute an action for its loss within the time limited by the policy. Gulotta, P. J., Christ, Brennan and Shapiro, JJ., concur; Martuscello, J., dissents and votes to affirm the order insofar as it is appealed from.