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WAGSCHAL v. SEA INS. CO.

August 25, 1994

HERMAN WAGSCHAL and MARSHA WAGSCHAL, Plaintiffs,
v.
THE SEA INSURANCE COMPANY, LIMITED, Defendant.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 Plaintiffs Herman and Masha Wagschal (the "Wagschals") have moved in limine for an order prohibiting Defendant The Sea Insurance Company, Limited ("Sea") from using certain evidence at trial in this matter. For the reasons set forth below, this motion is granted in part and denied in part.

 Parties

 The Wagschals are residents and domiciliaries of the State of New York. Sea is a foreign corporation authorized to engage in the business of insurance in the State of New York.

 Facts

 In 1986, the Wagschals purchased a residence in Monsey, New York (the "Residence"). The Residence suffered a fire on July 9, 1990, at which time the Plaintiffs had an insurance policy with Sea. A second fire on July 20, 1990 (together with the July 9 fire, the "1990 Fires") completely destroyed the Residence.

 On June 6, 1991, Sea declined the Plaintiffs' insurance claims on the grounds that the 1990 Fires were incendiary and caused by the insureds or at their behalf, that the insureds intentionally concealed and misrepresented material facts during the course of Sea's investigation regarding the circumstances surrounding the Fires, that the Wagschals fraudulently submitted sworn statements in proof of loss by grossly exaggerating the nature and extent of the damages, and that during the course of their examination under oath, the Wagschals concealed and misrepresented material facts regarding the circumstances of the Fires and their damages.

 Sea has indicated that it intends to introduce evidence at trial relating to a prior claim submitted by the Kingdom Development Corporation ("Kingdom") to the New York Property Insurance Underwriting Association ("New York Property") as a result of a fire in July, 1986 (the "1986 Fire"). Mr. Wagschal and Moshe Malik *fn1" were principals of Kingdom, which owned a property known as the White House Estates in Spring Valley, New York. Shortly after Kingdom purchased White House Estates, a hotel on the property was substantially destroyed by fire. Litigation over insurance coverage of the Kingdom loss ensued, in which there was a claim for more than $ 700,000 in damages. This litigation was settled by the payment of $ 50,000 by New York Property, and Sea has indicated that it intends to introduce evidence of this settlement.

 Sea has also indicated that it will attempt to introduce evidence relating to a fire occurring at Malik's residence in 1989 (the "1989 Fire"), a bank application and income verification form for a loan to Kingdom, applications for public assistance from 1984 to 1986 signed by the Wagschals, and certain bank statements of Mr. Wagschal.

 Prior Proceedings

 The complaint in this action was filed on April 10, 1992. This motion was argued on June 22, 1994, and was considered fully submitted as of that date.

 Evidence Relating to the 1986 and 1989 Fires

 The Wagschals seek to exclude all evidence or testimony making reference to the 1986 and 1989 Fires. Rule 404(b), ...


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