University Imaging Associates P. C., Respondent, v. Academic Health Professionals Insurance Association, Appellant, et al., Defendants

University Imaging Associates P. C., Respondent, v Academic Health Professionals Insurance Association, Appellant, et al., Defendants. [734 NYS2d 468] [MAJORITY] 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. 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 AD2d 165; Leon v Martinez, 84 NY2d 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. Contrs. v Town of Wells, 173 AD2d 1053). O’Brien, J. P., Florio, Schmidt and Smith, JJ., concur.