M. W. Zack Metal Co. v. Federal Insurance

Breitel and McNally, JJ. (dissenting).

Of course, the affidavit of plaintiff’s surveyor, Mr. Lindekens, is not and it need not be conclusive. The fact is that it is not contradicted and cannot, evidently, be contradicted at this time. This, despite the fact that defendant, according to its statement on argument, has completed its pretrial examination of Mr. Lindekens. In short, defendant is prayerful that it can establish the affirmative of a proposition by casting doubt on Mr. Lindekens’ assertions by cross-examination on a trial. This would be no substitute for contradiction then; and, in any event, now Mr. Lindekens’ assertions stand uncontradicted.

As to the averments by defendant’s surveyor based upon his inspection in New York after shipment, these are admissions of damage. Moreover, he also admitted that all but 37 of the coils were damaged, a condition he attributed to handling in shipment, the very risk insured against. Thus, he stated: “ (7) * * * I found 4 coils, about 4.3% of the shipment, actually damaged, but was never able to agree with the plaintiff upon the percentage of damage. I found 52 coils, about 56% of the shipment, with tiny dents which I did not consider to be damage. I found 37 coils, about 39.7% of the shipment, wholly unaffected by any sign of denting or other damage. ’ ’

As to the unsuccessful attempt to limit the conceded damage to the four coils, there is no de minimis rule in summary judgment, and if there were, four coils would not be de minimis in this shipment. Consequently, at best, defendant has a right on assessment to limit plaintiff’s recovery, but is in no position to deny the fact of recoverable loss under the policy. For rule 113 of the Eules of Civil Practice provides: “ 3. The existence of a triable issue of fact as to the amount or the extent of the damages shall not bar the granting of summary judgment.”

Accordingly, we dissent and vote to reverse and grant plaintiff summary judgment.

Boteiu", P. J., Eabih and Stevests, JJ., concur in Per Curiam opinion; Bbeitel and McNally, JJ., dissent in opinion.

Order, entered on June 2, 1961, affirmed upon the law and the facts, with $20 costs and disbursements to respondent.