J. Katz Creations, Ltd. v. St. Paul Fire & Marine Insurance ( 1981 )

Order, Supreme Court, New York County, entered December 13, 1979, granting defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs and disbursements, and the motion denied. The policy condition that the maximum value of all property in the custody of the insured or any of its employees or salesmen outside of the premises would not exceed $50,000 is clearly a warranty under section 150 of the Insurance Law. (See Grady v Concordia Fire Ins. Co., 267 NY 177.) Moreover, it is binding on the insured despite the absence of the insured’s signature on the indorsement containing the warranty, even though provision was made on the indorsement for the insured’s signed acceptance, since at the time of loss, this indorsement had been part of the policy, in its original form and for two successive renewals, without objection. (See American Express Ry. Co. v Lindenburgh, 260 US 584, 590.) We find, however, an issue of fact as to whether the breach of the warranty materially increased the risk. (See Insurance Law, § 150, subd 2; also Glickman v New York Life Ins. Co., 291 NY 45.) Accordingly, summary judgment should have been denied. Concur — Murphy, P. J., Sandler, Sullivan, Markewich and Fein, JJ.