Home Insurance v. Chang , 51 A.D.2d 926 ( 1976 )

Judgment of the Supreme Court, New York County, entered January 30, 1975 on an agreed statement of facts finding no liability on the part of the defendant for insurance premiums, reversed, on the law, and judgment directed for plaintiff in the sum of $20,110.22 in accordance with the insurance audit. Appellant shall recover of respondent $60 costs and disbursements of this appeal. Defendant imports goods from the Far East, and the specific items involved are canned goods from Taiwan. The insurance policy issued by plaintiff covered defendant on all merchandise purchases made by defendant on f.o.b. (Uniform Commercial Code, §2-319, subd [1], par [a]) and c. & f. (Uniform Commercial Code, § 2-320, subd [1]) terms. The court at the I. C. Part termed them "back-to-back” transactions and reasoned that defendant, and therefore plaintiff never assumed any risk on the items in question, and so no premium was due. Defendant purchased and resold the goods. If the defendant was at any time in jeopardy, then the umbrella coverage of the policy covered his insurable interest, and a premium was due. Between each purchase and then sale, there was a time lag, and the defendant also had to clear United States Customs and Food and Drug Administration. There was clearly a "risk” period. Concur— Kupferman, J. P., Murphy, Birns and Lane, JJ.; Lupiano, J., dissents and would affirm on the opinion of Spiegel, J. Settle order on notice.