Stern v. Charter Oak Fire Insurance

38 A.D.3d 1288, 834 N.Y.S.2d 912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2007
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered August 21, 2006 in a breach of contract action. The order, among other things, granted the motion of defendant The Charter Oak Fire Insurance Company to dismiss plaintiff’s claim for consequential damages.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Plaintiff commenced this action alleging that defendants breached the terms of the insurance policy issued to her by failing, inter alia, to pay certain claims for losses arising from an armed robbery at plaintiffs jewelry store. By stipulation of the parties, the action was dismissed against all defendants except The Charter Oak Fire Insurance Company (Charter Oak). Supreme Court properly granted Charter Oak’s motion to dismiss plaintiffs claim for consequential damages, including future lost profits after December 28, 2001 and future sale value of the business. The court also properly granted Charter Oak’s motion to preclude plaintiffs expert from testifying with regard to that claim and denied plaintiffs cross motion seeking partial summary judgment determining that the expert’s testimony was admissible at trial. The insurance policy expressly excludes coverage for the consequential damages claimed by plaintiff (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 37 AD3d 1184 [2007]; J.R. Adirondack Enters. v Hartford Cas. Ins. Co., 292 AD2d 771, 772 [2002]; Crawford Furniture Mfg. Corp. v Pennsylvania Lumbermens Mut. Ins. Co., 244 AD2d 881 [1997]). Present—Hurlbutt, J.P, Martoche, Lunn, Peradotto and Green, JJ.