Facet Industries, Inc. v. Wright

Alexander, J.

(dissenting). I would affirm the judgment below. The agreed statement of facts established conclusively that the diamonds were “delivered” and “entrusted” to International Diamond and Gem. It is also clear beyond peradventure that Sergio was an employee of International, and while it is true that the transaction was initiated by Sergio, it was in reference to International that plaintiff sought references and credit information, clearly evidencing that they envisioned “delivering] or entrusting] the jewelery to International.” Thus, the very authority relied upon by the majority, compels the conclusion that the exclusionary provision, paragraph 5 (A) (2) of the policy, does not apply. “The test is the intent or state of mind of the person turning the item over to another, not the intent or state of mind of the person receiving the item” (David R. Balogh, Inc. v Pennsylvania Millers Mut. Fire Ins. Co., 307 F2d 894, 897; see, also, Abrams v Great Amer. Ins. Co., 269 NY 90).

And while it may be logical to conclude, based upon the custom of the trade, that where jewelry is consigned on memoranda, that “employees of such consignees are excluded from such original coverage under the broad language like the policy involved here” the policy clearly does not so provide and had the insurer so intended, the simple expedient of including appropriate language would have made that intention clear and unassailable. Any ambiguity or doubt in respect thereto must be resolved against the insurer under well-settled principles of construction, as observed by the majority.

Another of those general rules of construction is that an insurance policy should be construed liberally in favor of the insured and strictly against the insurer. (Government Employees Ins. Co. v Kligler, 42 NY2d 863.) Moreover, an interpretation or construction favoring the insurer should be sustained only where that interpretation or construction is the sole construction which can be fairly placed upon the words employed. (Matter of Colonial Penn Ins. Co. v Salti, 84 AD2d 350.)

This record does not inform us as to how Sergio came into possession of the gems after they were received by International or indeed whether he received them on Internation*273al’s behalf. In the face of the stipulation that the gems were delivered to International, there is no factual predicate for any inference that International “entrusted” the gems to Sergio. (Cf. David R. Balogh, Inc. v Pennsylvania Millers Mut. Fire Ins. Co., supra.)

Ross and Asch, JJ., concur with Kassal, J.; Murphy, P. J., and Alexander, J., dissent in an opinion by Alexander, J.

Judgment, Supreme Court, New York County, entered on January 10, 1983, reversed, on the law, the judgment vacated, plaintiff’s motion for summary judgment denied, defendant’s cross motion for summary judgment granted and the complaint dismissed. Appellant shall recover of respondent $75 costs and disbursements of this appeal. The appeal from the order of said court entered on December 10, 1982 is dismissed as having been subsumed in the appeal from the judgment, without costs and without disbursements.