Opinion
January 19, 1976
Appeal from the Civil Court of the City of New York, New York County, BURTON J. SHERMAN, J.
Emanuel Greenberg and Lawrence B. Lipschitz for appellant.
Crudo Crudo (Alexander J. Crudo of counsel), for respondent.
Plaintiff insured a house and pier with defendant Allstate Insurance Company against all risks except as excluded by the policy. During a storm, a boat owned by the codefendant broke loose from its mooring, crashed into plaintiff's pier, and assertedly caused the only damage sought to be recovered. Defendant denied liability under paragraphs (b) and (e) of the General Exclusions in the policy for water and wave damage, whether driven by wind or not. Special Term below upheld this defense and dismissed the complaint.
To determine the meaning of a policy the court must look to the fair and reasonable construction of the policy (Harris v Allstate Ins. Co., 309 N.Y. 72; Pan American World Airways v Aetna Cas. Sur. Co., 505 F.2d 989) in conjunction with the contemplation of the parties (Goldstein v Standard Accident Ins. Co., 236 N.Y. 178; Harris v Allstate Ins. Co., supra). Not only are matters excluded construed to refer to their distinctive and peculiar properties while acting upon an object (Harris v Allstate Ins. Co., supra; Clark v Fid. Guar. Fire Corp., 39 N.Y.S.2d 377) but these exclusions do not apply when the object survived similar occurrences without damage and was damaged only when involved with a covered peril (Gillis v Sun Ins. Office, 238 Cal.App. 408; Sabella v Wisler, 59 Cal.2d 21).
It is clear that the parties to the policy under review intended to cover damage to the pier by a boat. Defendant argues, however, that the damage resulted from the water and waves impelling the boat into the pier. While this argument might have merit relative to damage to the boat itself (see Clark v Fidelity Guar. Fire Corp., supra; Wheelock v American Fire Cas. Co., 414 S.W.2d 61 [Texas]; Matthews v Shelby Mut. Plate Glass Cas. Co., 46 N.E.2d 473 [Ohio]; Friedman v Insurance Co. of North Amer., 4 Wis.2d 641) the exclusion is inapplicable to the damages done by the boat to the pier.
In light of the conceded facts and of the applicable legal principles, we conclude that the policy did not exclude the damages involved herein.
Order, entered July 2, 1975, reversed, with $10 costs, plaintiff's motion for summary judgment granted with an assessment of damages, and defendant's cross motion denied.
Concur: MARKOWITZ, P.J., TIERNEY and RICCOBONO, JJ.