Opinion
June 9, 1941.
In an action to recover on a policy of indemnity insurance, order denying plaintiff's motion for summary judgment and defendant's cross-motion for judgment dismissing the complaint modified on the law by striking from the first decretal paragraph the word "denied" and substituting in place thereof the word "granted;" and, as thus modified, the order, in so far as appealed from, is affirmed, with ten dollars costs and disbursements to plaintiff. The amount of plaintiff's recovery will be the amount demanded in the complaint, less $250 and interest on said sum of $250. The contract is not ambiguous, and provides for indemnification to plaintiff for damages imposed by law by reason of accidental injury to or destruction of property. No material facts are in dispute, and it is not contradicted that the injuries to the property were caused by accidental means. The terms of the contract between plaintiff and the sewer commission are outside the issues, but in any event the policy coverage is not lessened by the circumstance that plaintiff is liable for damages to adjoining property, whether caused by accident or not. Under the terms of the policy defendant is entitled to deduct $200 from the amount of property damage. The policy does not cover use and occupancy of property, and the defendant is not liable for the fifty dollars awarded for this item. Interest on both these amounts has been allowed heretofore, and should be deducted from the amount of plaintiff's demand. It is not necessary to remit the case for the assessment of damages. The material statements in the affidavit submitted on the plaintiff's motion for summary judgment have not been contradicted. Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur. Settle order on notice.