1626 2nd Ave LLC v. National Specialty Ins. Co., Inc. , 148 A.D.3d 529 ( 2017 )

1626 2nd Ave LLC v National Specialty Ins. Co., Inc. (2017 NY Slip Op 01978)

1626 2nd Ave LLC v National Specialty Ins. Co., Inc.

2017 NY Slip Op 01978

Decided on March 16, 2017

Appellate Division, First Department

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.

Decided on March 16, 2017
Tom, J.P., Acosta, Kapnick, Kahn, Gesmer, JJ.

3426 651425/14

[*1]1626 2nd Ave LLC, et al., Plaintiffs-Respondents,

v

National Specialty Insurance Co., Inc., et al., Defendants, Starr Indemnity & Liability Co., et al., Defendants-Appellants. [And a Third-Party Action]

Methfessel & Werbel, New York (Christian R. Baillie of counsel), for appellants.

Kushnick Pallaci PLLC, Melville (Vincent T. Pallaci of counsel), for respondents.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 25, 2016, which, insofar as appealed from as limited by the briefs, denied the motion of defendants Starr Indemnity & Liability Co. and U.S. Adjustment Corp. for summary judgment dismissing the complaint as against them, unanimously affirmed, with costs.

In this action to recover losses resulting from a flood at a mixed-use building, plaintiff 1626's business interruption losses sustained due to its resulting inability to collect rent from its commercial tenant were covered under the plain terms of the relevant policy. Defendants' various theories as to why plaintiff may not recover from them are laden with factual questions and particularly inappropriate for resolution prior to the completion of discovery. Accordingly, Supreme Court properly denied defendants' motion as premature (see Brooks v Somerset Surgical Assoc., 106 AD3d 624 [1st Dept 2013]; CPLR 3212[f]).

We have considered the remaining contentions, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 16, 2017

CLERK