309 Bakery Corp. v. Associated Mut. Ins. Coop. ( 2019 )

309 Bakery Corp. v Associated Mut. Ins. Coop. (2019 NY Slip Op 00833)

309 Bakery Corp. v Associated Mut. Ins. Coop.

2019 NY Slip Op 00833

Decided on February 5, 2019

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 February 5, 2019
Friedman, J.P., Mazzarelli, Webber, Kern, Oing, JJ.

8318 159659/14

[*1]309 Bakery Corp., Plaintiff-Respondent,

v

Associated Mutual Insurance Cooperative, Defendant-Appellant.

Farber Brocks & Zane L.L.P., Garden City (James M. O'Hara of counsel), for appellant.

The Law Office of Craig A. Blumberg, New York (Craig A. Blumberg of counsel), for respondent.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered July 17, 2017, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

In this insurance coverage action, defendant insurer sought summary judgment declaring that it has no obligation to reimburse plaintiff insured for rent payments made after the fire. Defendant argued that, under plaintiff's lease, plaintiff was not required to pay rent while the demised premises were wholly unusable or totally damaged and that testimony from plaintiff's president established that plaintiff was unable to use the premises for five months. We find that the motion court correctly determined that an issue of fact existed as to whether the demised premises were totally damaged, or rendered wholly unusable, by the fire, and therefore whether defendant is obligated under the terms of the policy to reimburse plaintiff.

We decline to reach defendant's arguments, raised for the first time on appeal, that any obligation to reimburse plaintiff for rent is limited to three months or $226,500.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 5, 2019

CLERK