Opinion
No. 5076.
May 21, 2009.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered November 8, 2007, which, in a subrogation action to recover damages caused by a fire in premises leased to defendant by plaintiff insurer's subrogor, granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for summary judgment, unanimously affirmed, without costs.
Gennet, Kallmann, Antin Robinson, PC, New York (Brian J. Bolan of counsel), for appellant.
Law Offices of Harvey Vandamme, New York (Hendrick Vandamme of counsel), for respondent.
Before: Mazzarelli, J.P., Friedman, Buckley, Acosta and Freedman, JJ.
Paragraph 12 of the lease, which obligates defendant to pay for damages specifically caused by fire only if the fire was "caused by [defendant's] actions," controls over paragraph 13, which generally obligates defendant to pay for any damages "caused by [defendant] or any occupant or visitor" ( see Bank of Tokyo-Mitsubishi, Ltd., N.Y. Branch v Kvaerner a.s., 243 AD2d 1, 8). Since the fire was allegedly caused by defendant's subtenant smoking in bed, and not by defendant's own actions, defendant cannot be held responsible for the cost of repairing the damage under the terms of the lease. We have considered plaintiff's other arguments and find them unavailing.