Opinion
2000-09733
Argued November 16, 2001
December 3, 2001.
In an action, inter alia, to recover damages for breach of contract, the defendant Academic Health Professionals Insurance Association appeals from so much of an order of the Supreme Court, Kings County (Gigante, J.), dated August 24, 2000, as denied those branches of its motion which were to dismiss the third, fourth, and sixth causes of action insofar as asserted against it.
Haskel Cooper, Garden City, N.Y. (Michael A. Haskel of counsel), for appellant.
Leahey Johnson, P.C., New York, N.Y. (Peter James Johnson and James P. Tenney of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied those branches of the motion of the defendant Academic Health Professionals Insurance Association (hereinafter AHPIA) which were to dismiss the third, fourth, and sixth causes of action, all alleging breach of contract. Contrary to the appellant's contentions, the plaintiff, University Imaging Associates, P.C. (hereinafter UIA), properly asserted causes of action to recover damages for breach of contract to recover capital surplus which was allegedly owed pursuant to the parties' contracts of insurance (see, Corcoran v. Hall Co., 149 A.D.2d 165; Leon v. Martinez, 84 N.Y.2d 83).
Moreover, since it cannot be determined on these papers whether or not UIA cancelled the contracts of insurance, the Supreme Court properly declined to dismiss those causes of action on that basis (see, B-S Indus. Constr. v. Town of Wells, 173 A.D.2d 1053).
O'BRIEN, J.P., FLORIO, SCHMIDT and SMITH, JJ., concur.