St. Paul Fire and Marine Insurance Company, Respondent,
v.
Capri Construction Corp. et al., Appellants, et al., Third-Party Defendant.
Court of Appeals of the State of New York.
Argued September 5, 1991. Decided October 10, 1991.Bruce D. Mencher for appellants.
Victor K. Soffer for respondent.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
*1018MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and plaintiff's motion for summary judgment denied.
Plaintiff's submissions in support of its motion for summary judgment fail to establish that the rates applied in calculating the additional premium allegedly due under the policy were those required to be applied according to its rating plans filed with the Superintendent of Insurance. Thus, issues of fact remain to be resolved, precluding the grant of summary judgment in plaintiff's favor. Moreover, the case presents open questions concerning interpretation of the contract, and whether plaintiff was entitled to unilaterally change the rates specified in the contract, which cannot be resolved on the record before us.
Order reversed, etc.