
    Falchook Markets, Inc., et al., Respondents-Appellants, v Warner Reciprocal Insurers et al., Appellants-Respondents, and Taaffe & Travers Associates, Inc., Respondent.
    Argued August 31, 1977;
    decided October 13, 1977
    
      
      Milton B. Pfeffer for appellants-respondents.
    
      Robert S. Newman for respondents-appellants.
    
      Roy E. Pomerantz for Taaffe & Travers Associates, Inc., respondent.
   Memorandum. The order of the Appellate Division is modified by remitting the case to Supreme Court for a determination of actual damages upon proper proof, and as so modified, it is affirmed, with costs to plaintiffs.

In response to plaintiffs’ motion for summary judgment in an action on a fire insurance policy issued by Warner Reciprocal Insurers, no triable issue of fact as to the existence and ownerhip of the policy by Falchook Markets, Inc., nor as to whether Falchook was bound by the mortgagee’s unauthorized tender of the policy for cancellation, was created by the insurer, and the determination by the Appellate Division granting summary judgment to Falchook will not be disturbed (CPLR 3212; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.05). However, only provable damages may be recovered and since no proper proof of the actual damage was submitted, the matter should be remitted for a determination of damages. In light of our affirmance of the grant of summary judgment, we need not reach the contingent cross appeal by plaintiffs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg, and Cooke concur.

Order modified and the case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed, with costs to plaintiffs.  