S. Bellara Diamond Corp. v. First Specialty Insurance

287 A.D.2d 368, 731 N.Y.S.2d 185, 2001 N.Y. App. Div. LEXIS 9921

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about August 2, 2000, denying defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court correctly held that defendant insurer failed to meet its burden of proving, as a matter of law, that the “unexplained loss/mysterious disappearance” exclusion in the subject jeweler’s block policy is applicable to the instant facts (see, Gurfein Bros. v Hanover Ins. Co., 248 AD2d 227). Plaintiff insured surmised that he accidentally threw the paper parcel of diamonds into the garbage as he hurriedly cleaned off his desk before going to lunch. This explanation, supported by circumstantial evidence, if believed by the trier of fact, could reasonably support an inference that the diamonds were accidentally thrown away (see, id.). Accordingly, it cannot be said at this juncture that the alleged loss is one for which the insured can furnish “no explanation whatsoever” (cf., Goldman & Sons v Hanover Ins. Co., 179 AD2d 388, affd 80 NY2d 986). Concur — Rosenberger, J. P., Williams, Tom, Wallach and Friedman, JJ.