Melhon v. Commercial Insurance

38 A.D.2d 929, 330 N.Y.S.2d 157, 1972 N.Y. App. Div. LEXIS 5062

Opinion

Order, Supreme Court, New York County entered on October 20, 1971, denying defendant’s motion to renew its motion for summary judgment unanimously reversed, on the law, the motion granted and upon renewal defendant’s motion for summary judgment granted. Defendant-appellant shall recover of respondents $50 costs and disbursements of this appeal. The appeal from order, Supreme Court, New York County entered on December 28, 1970, is unanimously dismissed, without costs and without disbursements, as academic. In this action to recover on a policy of fire insurance issued by defendant, or for reformation of said policy, it is our opinion that the damaged building does not fall within the policy description “27-29 East 95th Street”, which is one of the 10 separate locations listed therein, and, accordingly, the plaintiffs’ loss is not covered by said policy. Neither the common heating system and courtyard shared by the two buildings, nor the over-insured status of the covered building is sufficient to raise a triable issue as to coverage of the unlisted building. This is not a case involving a mere technical misdescription of the property insured, but one in which there is a complete failure to include the damaged building among the insured properties. Such failure, moreover, was not the result of any mutual mistake which might justify reformation, but was solely the result of mistake by plaintiffs or their insurance brokers. Concur — McGivern, J. P., Markewich, McNally, Tilzer and Capozzoli, JJ.