Gennet, Kallmann, Antin & Robinson, New York (Stanley W.
Kallmann of counsel), for appellant.
Offices of Roger D. Olson, New York (Roger D. Olson of
counsel), for respondent.
Friedman, J.P., Richter, Saxe, Moskowitz, Kapnick, JJ.
Supreme Court, New York County (Nancy M. Bannon, J.), entered
July 20, 2016, which denied defendant National Specialty
Insurance Co., Inc.'s (National Speciality) motion for
summary judgment dismissing the contract cause of action
against it, unanimously affirmed, without costs.
Pastabar Café Corporation was damaged when Hurricane
Sandy hit New York City in October 2012. In compliance with
its obligations under its lease, Pastabar had bought a
commercial package policy containing commercial general
liability and property damage coverage from defendant
policy, which was in force on October 29, 2012, provides that
the insurer "will not pay for loss or damage caused
directly or indirectly by, " among other things, water.
The policy also contained a "Water Exclusion
Endorsement" that defined "water" as
"[f]lood, surface water, waves (including tidal wave and
tsunami), tides, tidal water, overflow of any body of water,
or spray from any of these, all whether or not driven by wind
(including storm surge)." The policy also provided that
if any of the above "result[ed] in fire, explosion or
sprinkler leakage, [National Specialty] will pay for the loss
or damage caused by that fire, explosion or sprinkler leakage
(if sprinkler leakage is a Covered Cause of Loss)."
Hurricane Sandy struck, Pastabar claimed the premises lost
electricity for an extended period of time, and as a result,
the business was damaged by the spoilage of perishable food.
Power finally returned, but according to the complaint, the
landlord's failure to repair the electrical system at the
premises caused Pastabar's refrigeration system to short
out, requiring a complete replacement.
Specialty's third-party claims agent investigated the
conditions at the premises and, on National Specialty's
behalf, disclaimed coverage under the policy on the ground
that the water exclusion barred Pastabar's claims.
Pastabar commenced this action, seeking a declaration that
the damage sustained as a result of Hurricane Sandy was
caused by a covered loss under the National Specialty policy,
and also seeking specific performance under the policy.
deposition, Pastabar's manager testified that three
refrigerators and an ice machine were damaged by either water
damage or electric damage that occurred when Con Ed turned
the electricity back on about a month after the hurricane
"without checking the clocks or the watches downstairs,
" thus "caus[ing] the melting of wires and burning
of... most of the equipment." Specifically, the manager
testified, "[w]hen the electric turned on, it must have
caused some type of spark and it caused the damage" to
Specialty's moved for summary judgment dismissing the
complaint. On its motion, National Specialty's submitted
a sworn expert affidavit attesting that the water level at
the exterior of the premises was between 2.9 and 3.9 feet
above the roadway surface, and that the street flooding was
due to the overflow of the East River and was a direct cause
of the water entry into the building. The engineering report
attached to the affidavit included findings and photographs
showing flood inundation at the location. The report,
however, was unsigned, and there were no findings that
attributed Pastabar's damages to flood inundation or any
other cause of loss.
begin, the motion court properly considered the report from
National Specialty's expert. Although the report was
unsigned, it was incorporated into the expert's sworn
affidavit, thus rendering it appropriate for consideration on
National Specialty's motion (see Townes v Harlem
Group, Inc., 82 A.D.3d 583');">82 A.D.3d 583 [1st Dept 2011]).
National Specialty failed to establish prima facie that all
of Pastabar's claimed losses were caused by flood waters
resulting from Hurricane Sandy on October 29, 2012, and were
thus within the insurance policy exclusion for water and
floods. Based on photographs that Pastabar received from an
unidentified neighbor, National Specialty's expert made a
finding concerning the exterior water level at the premises
on October 29, 2012. However, the expert never inspected the
site or the electrical wiring. Therefore, the expert could
not refute testimony by Pastabar's manager that Pastabar
suffered additional damage a month after the storm, when
electricity was restored and caused "the melting of
wires and burning of... most of the equipment." Thus,
the expert's report never rose above the level of
speculation (see Oboler v City of New York, 31
A.D.3d 308, 308-309 [1st Det 2006], affd 8 N.Y.3d
of our decision, we need not evaluate the sufficiency of
Pastabar's showing in opposition (see Alvarez v