Peer Jewelry Manufacturing Corp. v. Insurance Co. of North America , 413 N.Y.S.2d 709 ( 1979 )

— Judgment, Supreme Court, New York County, entered January 31, 1978, after bench trial, reversed, on the law and the facts, and the case remanded, in the interest of justice, to Supreme Court, New York County, for a new trial on the issue of damages only, without costs and without disbursements. Appeal from order, denominated a decision, of the same court, entered January 26, 1978, dismissed as subsumed in the judgment, without costs and without disbursements. There was sufficient evidence to sustain the trial court’s conclusion of liability; we find substantial compliance by the assured with the conditions stated in the policy. Further, while the method of maintaining inventory was not precisely a model, it seems to have been adequate for the purpose. Most important, there was patently a basis for acceptance by the trial court of the credibility of the explanation of the method used by plaintiff corporation’s president, and he did establish that a loss had occurred. (Cf. Licht v New York Ind. Co., 250 NY 211.) However, proof as to the amount of the loss left much to be desired. That evidence was provided by a witness who based his calculations on an inventory value which seems to be nothing more than the insurance agreement’s loss limit. It appears to us that there is evidence available to plaintiff which, properly marshaled and presented, may well demonstrate the amount of the loss. Liability having been established, it is in the interest of justice to provide this opportunity. Concur— Murphy, P. J., Markewich, Silverman, Lynch and Yesawich, JJ.