Streicher v. Glitter & Gold Jewelers

Order, Supreme Court, New York County (Ira Gammerman, J.), entered June 24, 1994, which, insofar as appealed from, granted defendant insurer’s cross motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Gemstones that plaintiff had consigned to defendant insured were stolen while in the insured’s possession. The insured submitted a claim of loss to defendant insurer, which promptly paid and obtained a release from the insured. After receiving partial payment from the insured, plaintiff brought this action against both the insured and the insurer for the remaining amount. Although bailors have been allowed to sue their bailee’s insurer on the theory that an owner of property can take the place of the insured in an action brought under the policy (see, Stainless, Inc. v Employers Fire Ins. Co., 69 *306AD2d 27, 35, affd 49 NY2d 924, citing Exton & Co. v Home Fire & Mar. Ins. Co., 249 NY 258, 261), such is not the case here, plaintiff having elected to sue the bailee, who had included plaintiffs damages in its proof of loss, and the insurer having settled the claim in good faith (Hoffman v Fireman’s Fund Indem. Co., 160 Misc 823, affd 248 App Div 866). Concur—Murphy, P. J., Sullivan, Ellerin, Williams and Mazzarelli, JJ.