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Cassidy v. Allstate Insurance Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


June 16, 2009

GEORGE CASSIDY, APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, RESPONDENT.

In an action to recover damages for breach of a contract of insurance, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated October 3, 2008, which denied his motion for summary judgment on the issue of liability.

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.

PETER B. SKELOS, J.P., FRED T. SANTUCCI, ARIEL E. BELEN and CHERYL E. CHAMBERS, JJ.

(Index No. 6045/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on the ground that there is a triable issue of fact as to whether the insured made material misrepresentations concerning the loss for which coverage is sought. To the extent that the parties present conflicting evidence, it is clear that resolution of the issue will require credibility determinations, which are not proper on a motion for summary judgment, with limited exceptions not applicable here (see 6243 Jericho Realty Corp. v Autozone, Inc., 27 AD3d 447).

SKELOS, J.P., SANTUCCI, BELEN and CHAMBERS, JJ., concur.

20090616

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