Opinion
July 7, 1994
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
The IAS Court's decision to limit the jury trial to the issue of the actual square footage of the insured premises was proper, both procedurally (see, Levitt v. Lenox Hill Hosp., 184 A.D.2d 427, 428), and substantively. The policy does not limit plaintiff's end-of-term earned premium adjustments to those made on the basis of "audits". The insurer had the additional right to inspect at any time. Inspections may be held at the discretion of the insurer and there is no restriction on using information gained in an inspection to adjust earned premiums after the audit period. No restriction prohibits adjustment of an earned premium on the basis of non-variable facts ascertained for the first time through an inspection. Had the parties intended to include any such restrictions, they could have done so (see, Slamow v. Del Col, 174 A.D.2d 725, 726, affd 79 N.Y.2d 1016).
We have considered appellants' remaining arguments, and find them to be without merit.
Concur — Sullivan, J.P., Carro, Ellerin, Asch and Tom, JJ. [As amended by unpublished order entered Sept. 29, 1994.]