Hunt v. Colonial Cooperative Insurance ( 1995 )

In an action to recover the full value of an insurance policy, the plaintiff appeals from an order of the Supreme Court, Westchester County (Silverman, J.), dated August 25, 1994, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is modified by adding to the end of decretal paragraph the words "only to the extent of dismissing the complaint insofar as it seeks to recover damages for injury to property in excess of $165,000, and, upon searching the record, the plaintiff is granted partial summary judgment to the extent of directing the defendants to pay him the sum of $35,163.20, which was withheld by them, with interest at the lawful rate”; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the interest due and for the entry of an appropriate judgment.

We agree with the Supreme Court that, to the extent the complaint seeks damages in excess of $165,000, which the parties agreed would settle the matter, the defendants are entitled to dismissal of the complaint. However, the defendants have failed to show any legal basis for withholding the sum of $35,163.20, which they have characterized as a deduction for depreciation. Unlike the cases of Agostino v Holyoke Mut. Ins. Co. (89 AD2d 573) and Allstate Ins. Co. v Kleveno (81 AD2d 648), upon which the defendants rely, the insurance policy issued by them provides that no deductions are to be made for depreciation with respect to this claim.

We have examined the parties’ remaining contentions and find them to be without merit. Miller, J. P., Thompson, Friedmann and Florio, JJ., concur.