Wasserstein Enterprises v. Zurich Insurance

246 A.D.2d 385, 666 N.Y.S.2d 425, 1998 N.Y. App. Div. LEXIS 257

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered April 15, 1997, which granted plaintiff insured’s motion for summary judgment declaring that a roof collapse at its premises is covered by its policy with defendant insurer, unanimously affirmed, without costs.

Defendant’s expert’s opinion that the roof collapsed because of patent decay, which was based on his after-the-fact observation of dry rot that had caused the paint on a girder to discolor, was speculative insofar as meant to support the conclusion that such discoloration was observable before the roof collapsed, and insufficient to controvert the submissions of plaintiff’s experts that their first-hand observations before the collapse did not reveal any observable decay (see, Romano v Stanley, 90 NY2d 444, 451-452). We have considered defendant’s other arguments and find them to be either unpreserved or without merit. Concur—Milonas, J. P., Rosenberger, Ellerin, Nardelli and Colabella, JJ.