Opinion
Argued October 18, 1973
Decided November 15, 1973
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ABRAHAM J. GELLINOFF, J.
Gilbert Goldstein, Max J. Gwertzman and Lawrence Kovalsky for appellant.
Harry Salvan for respondent.
Implicit in the decisions below is that a determination as to whether or not the city water system is part of the nursing home water system could be made on the submitted documents. This conclusion must, of necessity, have been predicated on the following language of the policy: "K. * * * Loss by water damage shall mean damage caused by the accidental discharge or leakage of water * * * from within a plumbing * * * system * * * only when such discharge * * * is the direct result of the breaking or cracking of any pipes * * * forming a part of such system".
If the city "system" and the nursing home system are one and the same, then, ipso facto, there is but one large "system" in the entire city. If that is so, it is difficult to see why the language "cracking of any pipes * * * forming * * * such system" was used since there is no realistically alternate system to juxtapose with the city-wide "system". In addition the contractual provision "K" would have talked of "the" system not a system if it intended to embrace a unitary system concept. However, the language used clearly evinces an attempt to delineate and limit in some manner the plumbing system that was covered by the contract terms.
In any event, provision "K" seems so ambiguous as to require parol evidence to determine the intention of the parties with respect to coverage.
The factual determination with respect to whether or not the city system was contemplated as the subject of the insurance coverage would, of course, be dispositive of the case. On the other hand, if the question of intention cannot be satisfactorily resolved, it would become necessary to determine the physical delineation of the respective systems.
Given the need to clarify crucial ambiguous terms of the contract and possibly to determine by finding of fact, the physical delineation of the home's plumbing "system", it was error to decide this case by summary judgment.
Accordingly the order appealed from should be reversed and the motion for summary judgment denied.
Chief Judge FULD and Judges BURKE, BREITEL, JASEN, GABRIELLI, JONES and WACHTLER concur in Per Curiam opinion.
Order reversed, with costs, and case remitted to Special Term for further proceedings in accordance with the opinion herein.