Bronx-Westchester White Trucks, Inc. v. Hartford Accident & Indemnity Co. , 54 A.D.2d 832 ( 1976 )

Order and judgment entered respectively June 23, 1976 and July 2, 1976 in the Supreme Court, New York County, unanimously reversed on the law and plaintiff’s motion for summary judgment is denied, without costs and without disbursements. There are material and triable issues of fact presented which preclude the granting of summary judgment including, but not necessarily limited to, the question of whether the policy provided coverage for "floor planned” vehicles. On the application form plaintiff requested "blanket” coverage; however, in response to the earlier question, "Are New Cars Floor Planned?”, plaintiff marked the box indicating "No”. Plaintiff’s intention to include "floor planned” vehicles in its "blanket” coverage and defendant’s right to rely on such representation are unclear, as is the question of whether the premium paid under the policy would or would not have varied had plaintiff’s response been in the affirmative. Moreover, the complaint seeks recovery under the policy for the theft loss of a "floor planned” truck stolen from plaintiff’s premises and is grounded upon plaintiff’s claim that the policy, as written, provided such coverage. In granting summary judgment, Special Term, while concluding that lack of coverage existed, found that such lack was due to the negligence of defendant and its agents. Conceivably, there could be a question of estoppel if there was a misleading or misunderstanding as a result of defendant’s survey of plaintiffs specific insurance needs and plaintiff reasonably relied upon such survey to its detriment. Concur—Stevens, P. J., Markewich, Kupferman, Capozzoli and Lane, JJ.