Cohen v. Republic Insurance

131 Misc. 2d 483, 502 N.Y.S.2d 898, 1985 N.Y. Misc. LEXIS 3304

Opinion

OPINION OF THE COURT

Memorandum.

Judgment unanimously reversed, without costs, and claim dismissed.

In this small claims matter, in which plaintiff appeared pro se, the defendant insurance company refused to pay his claim for replacement of a burned kitchen counter top in his cooperative apartment. The insurance policy only covers personal property owned or used by the insured and the insurance company contended that the counter top was a fixture and part of the realty which would not be covered instead of retaining its character as personal property.

In our view, the kitchen cabinet counter top was part of the realty and was not covered by the policy. The cabinet top was apparently installed by the owner of the building before the tenant occupied the apartment (23 NY Jur, Fixtures, § 3, at 116; § 7, at 120-121; Marine Midland Trust Co. v Ahern, 16 NYS2d 656; cf. Troncillito v Farm Family Mut. Ins. Co., 89 Misc 2d 844, affd 63 AD2d 1042, affd 47 NY2d 736).

In view of the foregoing we need not consider the other issue raised by the defendant on this appeal. We also do not pass upon the rights plaintiff may have as against the landlord corporation.

Pino, P. J., Jones and Lerner, JJ., concur.