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Greenwich Insurance Co. v. Volunteers of America-Greater New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 21, 2009

GREENWICH INSURANCE COMPANY, ETC., PLAINTIFF-APPELLANT,
v.
VOLUNTEERS OF AMERICA-GREATER NEW YORK, INC., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered November 8, 2007, which, in a subrogation action to recover damages caused by a fire in premises leased to defendant by plaintiff insurer's subrogor, granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiffs' cross motion for summary judgment, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Buckley, Acosta, Freedman, JJ.

601048/06

Paragraph 12 of the lease, which obligates defendant to pay for damages specifically caused by fire only if the fire was "caused by [defendant's] actions," controls over paragraph 13, which generally obligates defendant to pay for any damages "caused by [defendant] or any occupant or visitor" (see Bank of Tokyo-Mitsubishi, Ltd., N.Y. Branch v Kvaerner a.s., 243 AD2d 1, 8 [1998]). Since the fire was allegedly caused by defendant's subtenant smoking in bed, and not by defendant's own actions, defendant cannot be held responsible for the cost of repairing the damage under the terms of the lease. We have considered plaintiff's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090521

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