Opinion
June 12, 1995
Appeal from the Supreme Court, Suffolk County (Seidell, J.).
Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.
The evidence adduced at the trial presented issues of fact as to (1) whether the premises were occupied at the time of the fire (see, Knight v. United States Fid. Guar. Co., 123 Ga. App. 833, 835, 182 S.E.2d 693, 696; Perrotta v. Middlesex Mut. Ins. Co., 37 A.D.2d 783; Page v. Nationwide Mut. Fire Ins. Co., 15 A.D.2d 306; see also, Myers v. Merrimack Mut. Fire Ins. Co., 788 F.2d 468), (2) whether an agent of the plaintiff intentionally set the fire (see, People v. Maxwell, 116 A.D.2d 667; Anderson v. General Acc. Fire Life Assur. Corp., 58 A.D.2d 568; Shawanga Holding Corp. v New York Prop. Ins. Underwriting Assn., 57 A.D.2d 677; V.F.V. Constr. Co. v. Aetna Ins. Co., 56 A.D.2d 598), and (3) whether the plaintiff willfully concealed the cause of the fire or made false statements with respect to the cause of the fire. Accordingly, the defendant's first, third, fourth, and fifth affirmative defenses should have been submitted to the jury.
However, we agree with the trial court that there is no evidence that the plaintiff increased the hazard insured against by storing gasoline on the insured premises. Thus, the second affirmative defense was properly dismissed. Mangano, P.J., Joy, Hart and Florio, JJ., concur.