B & H Management Corp. v. Hardware Mutual Casualty Co.

Rabin, J. P.

(dissenting). I dissent and vote for judgment in favor of the defendant. The only reasonable construction that can be placed upon the exclusion clause is that such clause is broad enough to include all property damaged wheresoever situated and is not confined to damage only to such property as is located on the insured premises. Fairly read, the word ‘ ‘ therein ’ ’ contained in the exclusion clause merely refers to the word ‘ ‘ property ’ ’ so that the exclusion encompasses injuries to buildings or property in such buildings. It cannot be construed to relate back to the word “ buildings ” so as to limit that word to mean buildings located on the insured premises. If that were the intention then the word ‘ ‘ thereon ’ ’ would have been used. Reading the exclusion clause as a whole — as we must — compels this conclusion. Consideration must be given to the following language of the clause which provides for exclusions as “ to any of the following insofar as any of them occur on or from premises owned by * * * the named insured ” (emphasis supplied). The word “ from ” indicates that what was intended was to exclude damage to property outside of the insured’s premises, otherwise that word can have no meaning. Therefore, a reading of the exclusion clause as a whole supports the position of the defendant that any damage as the result of a leakage from plumbing or, as in this case, from the standpipe, is excluded from coverage, whether such damage is done to buildings or property on or off the insured premises.

In my opinion, judgment should be granted in favor of defendant.

M. M. Frank, Valente, McNally and Stevens, JJ., concur in Per Curiam opinion; Rabin, J. P., dissents and votes for judgment for defendant, in opinion.

Judgment directed in favor of the plaintiff for the sum of $2,250, without interest and without costs.

Settle order.