Opinion
Appeal No. 15165 Index No. 152935/18Case No. 2021-01534
01-27-2022
Tenth Ave., LLC, Plaintiff-Respondent, v. Aspen Am. Ins. Co., Defendant-Appellant. Appeal No. 15165 No. 2021-01534
Gennet Kallmann Antin, Sweetman & Nichols, P.C., New York (Donald G. Sweetman of counsel), for appellant. Law Office of Craig A. Blumberg, New York (Craig A. Blumberg of counsel), for respondent.
Gennet Kallmann Antin, Sweetman & Nichols, P.C., New York (Donald G. Sweetman of counsel), for appellant.
Law Office of Craig A. Blumberg, New York (Craig A. Blumberg of counsel), for respondent.
Before: Kapnick, J.P., Gesmer, González, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered April 2, 2021, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Defendant provided a commercial property insurance policy to plaintiff which excluded coverage for "theft by any person to whom you entrust the property for any purpose." Plaintiff suffered losses as a result of conduct by its tenant, to whom the property had been entrusted. However, defendant failed to establish that plaintiff's loss resulted entirely from theft by plaintiff's tenant, and therefore could be subject to the policy exclusion (see generally Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 N.Y.2d 208, 218 [2002]; Cestaro v Fire & Cas. Ins. Co. of Conn., 30 A.D.3d 263, 264 [1st Dept 2006]). The documentary evidence and testimony relied upon by defendant, which described damage and destruction of plaintiff's property as well as the severing of items such as railings and fixtures prior to the removal of property, raises issues of fact as to whether any of the losses resulted from vandalism, which defendant concedes would be a covered loss (see Georgitsi Realty, LLC v Penn-Star Ins. Co., 21 N.Y.3d 606, 611 [2013]; Cestaro at 264; Cresthill Indus. v Providence Washington Ins. Co., 53 A.D.2d 488, 497 [2d Dept 1976]). Moreover, there is also a question of fact as to whether the property was still entrusted to the plaintiff's tenant at the time of the damage to the property, since a judgment of eviction against him had already been entered at that time.