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Mary L. Ho, Etc., Plaintiff-Appellant-Respondent v. Greenwich Insurance Company

New York Supreme and/or Appellate Courts Appellate Division, First Department


March 26, 2013

MARY L. HO, ETC., PLAINTIFF-APPELLANT-RESPONDENT,
v.
GREENWICH INSURANCE COMPANY,, DEFENDANT-RESPONDENT-APPELLANT.

Ho v Greenwich Ins. Co.

Decided on March 26, 2013

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.

Friedman, J.P., Moskowitz, DeGrasse, Richter, Gische, JJ.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered August 2, 2011, which, inter alia, denied the parties' motions for summary judgment, unanimously affirmed, without costs.

In determining whether fire was the direct cause of damage to plaintiff's building, and thus whether the loss is covered, the insurer is liable for every loss which necessarily follows from the fire or arises by necessity from incidents and surrounding circumstances (see Throgs Neck Bagels v GA Ins. Co. of N.Y., 241 AD2d 66, 70 [1st Dept 1998]).

Here, however, based upon the conflicting affidavits of the parties' experts, the motion court properly found issues of fact as to whether the insured's loss necessarily followed from the fire two doors and twenty or so feet away, causing the collapse of 109 East Broadway, the demolition of the adjacent building 107 East Broadway, and the purported structural weakening of 105 East Broadway.

For the reasons noted above, issues of fact also preclude a finding as a matter of law that the insurer's exclusion for enforcement of an "ordinance or law" was not applicable to plaintiff's fire loss claim (see Throgs Neck Bagels Inc., 241 AD2d at 67).

Plaintiff's property damage claim does not fall within the ambit of Insurance Law § 3420[d] (see Scappatura v Allstate Ins. Co., 6 AD3d 692 [2d Dept 2004].

We have considered all other contentions and find them to be without merit.

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

ENTERED: MARCH 26, 2013

CLERK

20130326

© 1992-2013 VersusLaw Inc.



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