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

2017 NY Slip Op 1978, 148 A.D.3d 529, 48 N.Y.S.3d 596

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2017
• Docket: 3426 651425/14
• Status: Published

Opinion

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.

Concur — Tom, J.P., Acosta, Kapnick, Kahn and Gesmer, JJ.