Opinion
570777/07.
Decided November 24, 2008.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered December l9, 2006, which granted defendant's motion for summary judgment dismissing the complaint.
Order (Peter H. Moulton, J.), entered December l9, 2006, modified to the extent of denying defendant summary judgment on the first and second causes of action and reinstating these claims and, as modified, affirmed, without costs.
PRESENT: Davis, J.P., Heitler, J.
Plaintiff's cause of action seeking to recover loss of rents under a special multi-peril insurance policy was properly dismissed since the record conclusively established that plaintiff did not sustain any covered loss. Reading the provisions of the insurance policy in the context of the entire agreement ( see Bijan Designers for Men, Inc. v Fireman's Fund Ins., 264 AD2d 48, 51-52), we agree that plaintiff was not entitled to recover the fair rental value of the apartments damaged by fire unless he sustained an "actual" loss in rent. Plaintiff's own deposition testimony showed that he and his family occupied the apartments in question for two years preceding the fire, that he did not charge or collect any rent for these units, and that at the time of the fire, he had no intention to lease any of the units. There being no coverage under the terms of the insurance policy, plaintiff's attempt to invoke the doctrines of waiver and estoppel is unavailing ( see Charlestowne Floors v Fidelity Guar. Ins. Underwriters, 16 AD3d 1026, 1027).
However, defendant failed to establish entitlement to summary judgment dismissal of the entire complaint, since its supporting papers, and indeed the motion court, only addressed plaintiff's loss of rents cause of action ( see Piccinich v New York Stock Exch., 257 AD2d 438, 439).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.