Potamianos v. Dryden Mutual Insurance

280 A.D.2d 935, 720 N.Y.S.2d 701, 2001 N.Y. App. Div. LEXIS 1057

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2001
• Status: Published

Opinion

—Order insofar as appealed from unanimously reversed on the law with costs, motion denied and claim for damage to business property/contents against defendant Dryden Mutual Insurance Company reinstated. Memorandum: Supreme Court erred in granting that part of the motion of Dryden Mutual Insurance Company (defendant) for summary judgment dismissing the claim for damage to business property/ contents on the ground that coverage for plaintiffs’ business property was precluded under the “civil authority” exclusion of the policy. Defendant failed to establish that plaintiffs could have safely removed their property from their windstorm-damaged building before the City of Syracuse (City) ordered its demolition. There is an issue of fact whether such removal was unsafe or impracticable and thus whether the “proximate, efficient and dominant cause” of plaintiffs’ property loss was the windstorm and not the City’s demolition order (Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008, 1010, rearg denied 81 NY2d 784; see, Throgs Neck Bagels v GA Ins. Co., 241 AD2d 66, 69-70). (Appeal from Order of Supreme Court, Onondaga County, Major, J. — Summary Judgment.) Present— Pigott, Jr., P. J., Wisner, Hurlbutt, Burns and Lawton, JJ.