I would reverse and deny defendant’s motion for summary judgment dismissing the complaint. Although a breach of warranty that materially increases an insurer’s risk of loss would preclude coverage as a matter of law (M. Fabrikant & Sons v Overton & Co. Customs Brokers, 209 AD2d 206, 207 [1994]), the factual issues arising from the opposing submissions by the parties preclude summary determination on the present record.
In this action for breach of contract for failure to pay a $150,849.40 insurance claim arising from a truck hijacking at the airport in Mexico City, questions of fact are presented as to whether plaintiff breached a warranty in defendant’s policy “that each truck be accompanied by an armed escort in front and behind the vehicle carrying the goods. Each armed escort must have a minimum of two (2) armed guards and be equipped with two-way radios and cellular phones.”
The motion court, in granting defendant insurer summary judgment, found that the language requiring an armed escort was unambiguous. However, as noted by the majority, the endorsement in issue was amended at plaintiff’s request and replaced an earlier warranty clause, which provided for less guards, and added the following limitation: “Should escort be ‘unarmed,’ there will be a 10% deductible, on the entire value of the entire shipment, for any losses within Mexico” (emphasis in original). Thus, if the only alleged breach were that the escort was unarmed, the applicable penalty would seemingly be a 10% deductible with coverage otherwise provided. Moreover, the term “guards” is not defined in the policy, suggesting at least an ambiguity as to what skills or training the “guards” were to have. All the policy seems to require for coverage to apply is *64that there be accompanying vehicles, front and back, with two people in each vehicle.
Contrary to the statements offered by defendant to the effect that none of the men present at the time of the hijacking were “guards,” the record reflects that plaintiff was billed $200 by the trucking company, DSL Transportation Services, Inc., for “guard SERVICE PERFORMED BY: JUAN EDGAR FLORES ESPAÑA [and] juan roberto jimenez moreno,” two of the three men admittedly on duty at the time of the robbery. Moreover, in response to the sworn statements of the three men present to the contrary, plaintiff offered the affidavit of Victor Ponce, the shipping manager of DSL de Mexico S.A. de C.V, stating that “[s]ecurity for the shipment was under [his] supervision and direction” and that “[t]he truck was escorted by an unarmed escort, with two persons in front and two behind. In front of the load on duty was Juan Edgar Flores . . . with a helper. In back of the load on duty was Juan Roberto Jiminez, also with a helper . . . . The truck that was stolen was being driven by Salvador Munoz Morales. These individuals had two-way radios and cellular phones in both escorts in front of the stolen truck, and the escort behind the truck that was stolen, and also in the stolen truck itself.”
Thus, while the statements offered by defendant in support of its motion for summary judgment contradict Mr. Ponce’s affidavit, given some of the unclear or confusing one-word answers by the three men in questionnaires prepared by an investigator on behalf of defendant, questions of credibility and reliability as well as the weight to be given to the conflicting evidence are presented, which cannot and should not be determined on a motion for summary judgment, particularly where, as pointed out by plaintiff in its attorney’s affidavit in opposition, there has been no opportunity to depose those nonparty Mexican witnesses. Under these circumstances, summary judgment is premature (see CPLR 3212 [f]).
Buckley, P.J., and Saxe, J., concur with Sullivan, J; Mazzarelli and Andrias, JJ., dissent in a separate opinion by Andrias, J.
Order, Supreme Court, New York County, entered August 24, 2001, affirmed, with costs and disbursements.