" (Emphasis added.) In our view, a loss established by such personal observation and knowledge would be readily distinguishable from a loss established solely by reference to perpetual inventory records and a "unit reconciliation" of the existing physical inventory with the totals reflected therein (see, e.g., Teviro Casuals v American Home Assur. Co., 54 N.Y.2d 915; American Thermostat Corp. v. Aetna Cas. Sur. Co., 59 A.D.2d 965, mot for lv to app den 43 N.Y.2d 647; Kaplan Jewelers v. Insurance Co. of North Amer., 86 Misc.2d 334; Dunlop Tire Rubber Corp. v. Fidelity Deposit Co. of Maryland, 479 F.2d 1243), and is much closer conceptually to the proof of loss sustained in Popeo v. Liberty Mut. Ins. Co. ( 369 Mass. 781), i.e., testimonial evidence by a materials control manager that he helped to put particular items of property into a locked enclosure to which only employees had access, and that sometime later they were gone. As the court remarked in that case by way of analogy ( supra, p 785): "If the owner of an automobile locks it in a garage and later finds the garage empty, it would be an unwarranted strain on the language to say that he had made an `inventory computation.'" So, too, here, the plaintiffs' claim of loss would not appear to be wholly dependent upon an "inventory computation" as the defendant maintains, but rather, inter alia, upon a specific enumeration of several of the missing items, r
This exclusion, for many years the standard one in this kind of policy, has been the subject of extensive judicial consideration with varying results. (See, e.g., Dunlop Tire Rubber Corp. v Fidelity Deposit Co. of Maryland, 479 F.2d 1243; United States Smelting Refining Min. Co. v Aetna Cas. Sur. Co., 372 F. Supp. 489; American Thermostat Corp. v Aetna Cas. Sur. Co., 59 A.D.2d 965, mot for lv to app den 43 N.Y.2d 647; Hoboken Camera Center v Hartford Acc. Ind. Co., 93 N.J. Super. 484.) A lucid analysis of the problem of construction presented was set forth in Dunlop Tire Rubber Corp. v Fidelity Deposit Co. of Maryland ( 479 F.2d 1243, 1246, supra) where the court observed: "The language preceding the first semicolon clearly indicates that a claim at all dependent upon an inventory or profit and loss computation is to be excluded from the coverage of the policy. The insured cannot depend upon such evidence to establish his prima facie case.
Though there are contrary decisions of other State and Federal courts, in our opinion the cases cited state the better rule. Moreover, it is not inconsistent with the holdings in Teviro Casuals v American Home Assur. Co. ( 54 N.Y.2d 915) and American Thermostat Corp. v Aetna Cas. Sur. Co. ( 59 A.D.2d 965, mot for lv to app den 43 N.Y.2d 647), on which the carrier relies, both of which turned on the failure of the insured to present sufficient proof that the loss claimed was due to employee dishonesty and did not take a clear position on the meaning of inventory computation.Kaplan Jewelers v Insurance Co. ( 86 Misc.2d 334) and Kernwood Mfg. Corp. v Home Ind. Co. ( 65 Misc.2d 354, affd 67 Misc.2d 888), to the extent that they reject the distinction here drawn between unit inventory and inventory computations based on estimation, are not to be followed.
The policy excludes coverage against loss by the "unexplained or mysterious disappearance of property, the proof of which, either as to its factual existence or amount is solely dependent upon an inventory computation or a profit and loss computation". Plaintiff has raised a triable issue of fact whether or to what extent the exclusion applies through the affidavits of its employees stating that at least some of plaintiff's losses beyond those conceded by defendant were caused by employee theft and therefore were not "unexplained or mysterious" (cf., Teviro Casuals v American Home Assur. Co., 81 A.D.2d 814, affd for reasons below 54 N.Y.2d 915; American Thermostat Corp. v Aetna Cas. Sur. Co., 59 A.D.2d 965, lv denied 43 N.Y.2d 647; Dunlop Tire Rubber Corp. v Fidelity Deposit Co., 479 F.2d 1243).