Frost House, Inc. v. Preferred Mutual Insurance

Appellate Division of the Supreme Court of New York

Frost House, Inc. v. Preferred Mutual Insurance

15 A.D.2d 741, 223 N.Y.S.2d 875, 1962 N.Y. App. Div. LEXIS 11656

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 6, 1962

StatusPublished

Cited by4 cases

This text of 15 A.D.2d 741 (Frost House, Inc. v. Preferred Mutual Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frost House, Inc. v. Preferred Mutual Insurance, 15 A.D.2d 741, 223 N.Y.S.2d 875, 1962 N.Y. App. Div. LEXIS 11656 (N.Y. Ct. App. 1962).

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Opinion

Whether the hazard was increased by means within the control of the insured is an issue of fact. (Montello v. Manhattan Fire & Marine Ins. Co., 250 App. Div. 610.) The extension of coverage to the property when vacant or unoccupied without limit of time did not entitle the insured to otherwise increase the fire hazard by abandonment and disrepair. Whether the abandonment or disrepair here was sufficiently extensive or protracted in time to constitute an increased hazard within the terms of the policy, giving effect to the vacancy clause, is an issue of fact. Moreover, on this record there is no basis for a finding of the cash value at the time of the loss. Neither market nor replacement value, which the record does not establish, is determinative. The factors among others properly considered in the determination of the cash value, if demonstrated by competent evidence, are the condition of the property, its use or abandonment, and the purpose to [742]*742demolish. (Gervant v. New England Fire Ins. Co., 306 N. Y. 393; McAnarney v. Newark Fire Ins. Co., 247 N. Y. 176.) We find there is no merit to the first defense alleging that plaintiff is not the insured. Concur—Botein, P. J., Breitel, Valente, McNally and Eager, JJ.

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Whether the hazard was increased by means within the control of the insured is an issue of fact. (Montello v. Manhattan Fire & Marine Ins. Co., 250 App. Div. 610.) The extension of coverage to the property when vacant or unoccupied without limit of time did not entitle the insured to otherwise increase the fire hazard by abandonment and disrepair. Whether the abandonment or disrepair here was sufficiently extensive or protracted in time to constitute an increased hazard within the terms of the policy, giving effect to the vacancy clause, is an issue of fact. Moreover, on this record there is no basis for a finding of the cash value at the time of the loss. Neither market nor replacement value, which the record does not establish, is determinative. The factors among others properly considered in the determination of the cash value, if demonstrated by competent evidence, are the condition of the property, its use or abandonment, and the purpose to [742]*742demolish. (Gervant v. New England Fire Ins. Co., 306 N. Y. 393; McAnarney v. Newark Fire Ins. Co., 247 N. Y. 176.) We find there is no merit to the first defense alleging that plaintiff is not the insured. Concur—Botein, P. J., Breitel, Valente, McNally and Eager, JJ.

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Bluebook (online)

15 A.D.2d 741, 223 N.Y.S.2d 875, 1962 N.Y. App. Div. LEXIS 11656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frost-house-inc-v-preferred-mutual-insurance-nyappdiv-1962.

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