Opinion
2013-03-26
Mary L. HO, etc., Plaintiff–Appellant–Respondent, v. GREENWICH INSURANCE COMPANY, Defendant–Respondent–Appellant.
Law Office of Stephen K. Seung, New York (Robert Nizewitz of counsel), for appellant. Pillinger Miller Tarallo, LLP, Elmsford (Adam T. Newman of counsel), for respondent.
Law Office of Stephen K. Seung, New York (Robert Nizewitz of counsel), for appellant. Pillinger Miller Tarallo, LLP, Elmsford (Adam T. Newman of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, DeGRASSE, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered August 2, 2011, which, inter alia, denied the parties' motions for summary judgment, unanimously affirmed, without costs.
In determining whether fire was the direct cause of damage to plaintiff's building, and thus whether the loss is covered, the insurer is liable for every loss which necessarily follows from the fire or arises by necessity from incidents and surrounding circumstances ( see Throgs Neck Bagels v. GA Ins. Co. of N.Y., 241 A.D.2d 66, 70, 671 N.Y.S.2d 66 [1st Dept. 1998] ).
Here, however, based upon the conflicting affidavits of the parties' experts, the motion court properly found issues of fact as to whether the insured's loss necessarily followed from the fire two doors and twenty or so feet away, causing the collapse of 109 East Broadway, the demolition of the adjacent building 107 East Broadway, and the purported structural weakening of 105 East Broadway.
For the reasons noted above, issues of fact also preclude a finding as a matter of law that the insurer's exclusion for enforcementof an “ordinance or law” was not applicable to plaintiff's fire loss claim ( see Throgs Neck Bagels Inc., 241 A.D.2d at 67, 671 N.Y.S.2d 66).
Plaintiff's property damage claim does not fall within the ambit of Insurance Law § 3420[d] ( see Scappatura v. Allstate Ins. Co., 6 A.D.3d 692, 775 N.Y.S.2d 162 [2d Dept. 2004] ).
We have considered all other contentions and find them to be without merit.