Opinion
February 4, 1991
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the judgment is affirmed, with costs.
In 1982, when the roof of a building owned by the plaintiff began to slide, the plaintiff sought reimbursement under an "all risk" insurance policy it had with Continental Insurance Company (hereinafter Continental). An "all risk" policy covers all losses which are fortuitous (see, Dow Chem. Co. v Royal Indem. Co., 635 F.2d 379; Standard Structural Steel v Bethlehem Steel Corp., 597 F. Supp. 164; Annotation, All Risks Insurance-Coverage, 88 ALR2d 1122, 1128, at § 4; 10A Couch, Insurance 2d § 42:2, at 148). However, Continental disclaimed coverage, contending that the loss was not fortuitous because it was caused by the plaintiff's failure to adequately repair the roof following a fire in 1980, for which Continental paid the plaintiff under a previous policy. We disagree.
A fortuitous event is "any occurrence or failure to occur which is, or is assumed by the parties to be, to a substantial extent beyond the control of either party" (Insurance Law § 1101 [a] [2]). There is no evidence in this record that the sliding of the roof was within the control of either party. The plaintiff hired Wald Roofing Company (hereinafter Wald) to make the repairs following the 1980 fire. The plaintiff did not have any expertise in this area, and therefore relied upon Wald to do whatever was necessary to properly complete the job. Further, the owner of Wald testified that he would not have done the repair if there were any danger to the structure. Thus, the loss was "to a substantial extent beyond [plaintiff's] control" (Insurance Law § 110 [a] [2]). Further, Continental's contention that the plaintiff was negligent in failing to make proper repairs is unavailing. Mere negligence of an insured is not a defense to coverage under an "all risk" policy (see, Finkelstein v Central Mut. Ins. Co., 8 Misc.2d 261; Morrison Grain Co. v Utica Mut. Ins. Co., 632 F.2d 424, 431; Leavell Co. v Fireman's Fund Ins. Co., 372 F.2d 784; New York, New Haven Hartford R.R. Co. v Gray, 240 F.2d 460, cert denied 353 U.S. 966; Central Mfrs. Mut. Ins. Co. v Elliott, 177 F.2d 1011). We also find that the loss was not caused by an inherent or latent defect which would fall under one of the policy's exclusions (see, Essex House v St. Paul Fire Mar. Ins. Co., 404 F. Supp. 978, 988-989; Mattis v State Farm Fire Cas. Co., 118 Ill. App.3d 612, 454 N.E.2d 1156; see also, General Am. Transp. Corp. v Sun Ins. Off., 369 F.2d 906). Therefore, since there was no rational process upon which the jury could base a finding in favor of Continental, judgment as a matter of law in favor of the plaintiff as to liability was warranted (see, Blum v Fresh Grown Preserve Corp., 292 N.Y. 241, 245). Brown, J.P., Harwood, Miller and Ritter, JJ., concur.