Simkowitz v. Firemen's Fund Insurance , 774 N.Y.S.2d 684 ( 2004 )

Judgment, Supreme Court, New York County (Diane Lebedeff, J.), entered September 16, 2003, dismissing the complaint pursuant to an order, same court and Justice, entered August 27, 2003, which, inter alia, granted defendant insurer’s cross motion for summary judgment dismissing plaintiff insureds’ complaint, unanimously affirmed, without costs. Appeal from said order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Under Administrative Code of the City of New York § 27-922 (d), enacted after the subject prewar buildings were constructed, upon discovery of a gas leak, the entire gas system must be shut down for integrity testing, which involves pressures much greater than normal. In this case, after leaks were discovered in the building that concededly were the result of normal deterioration, and the mandated integrity testing completed, numerous additional leaks were discovered, allegedly caused by the integrity testing, and requiring additional repairs for which plaintiffs seek to recover under their all-risk policy with defendant. Defendant rejected the claims on the basis of exclusions for ordinary wear and tear and failure to maintain. “[T]he ordinance requiring testing at greater than normal pressure embodies a legislative determination that a gas system that leaks under the more extreme conditions should not be put back into service, and must be repaired or replaced” (St. Paul Fire & Mar. Ins. Co. v 111 Tenants Corp., 2003 WL 21242998, *4, 2003 US Dist LEXIS 8923, *13 [SD NY, May 28, 2003]). Plaintiffs present no evidence that the system’s proclivity to leak, as revealed by the testing, was caused by anything other than the same ordinary wear and tear that caused the initial leaks (see id.). Accordingly, the wear-and-tear exclusion applies, and the action was properly dismissed. Concur—Tom, J.P., Andrias, Ellerin and Gonzalez, JJ.