Zimring v. English & American Insurance

91 A.D.2d 889, 457 N.Y.S.2d 504, 1983 N.Y. App. Div. LEXIS 16167

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 1983
• Status: Published

Opinions

— Order and judgment (one paper) Supreme Court, New York County (Tierney, J.), entered November 26, 1981, denying plaintiffs-appellants’ motion for summary judgment and granting defendants-respondents’ concurrent motion for summary judgment affirmed, with costs. The facts underlying this litigation are not in dispute, and are fairly stated in the dissent. On those facts, we find no ambiguity in the baggage warranty clauses of the subject policies and agree that application of the exclusionary provisions thereof defeats appellants’ recovery. (Breed v Insurance Co. of North Amer., 46 NY2d 351.) The attaché case was being used as a trunk, bag, parcel or suitcase in which appellants’ articles of personal convenience and necessity were being carried for their personal use, while they were “travelling” from their home in Manhattan to a social event in Brooklyn. Thus in order for a loss of these items of personalty contained in that baggage to be covered under the policy, there had to be personal supervision by the assured or a member of the assured’s family. As observed by Special Term, even if it could be said that the supervision of the hired chauffeur was the supervision of the assured, that supervision was withdrawn when the chauffeur left the vehicle unattended while having dinner. Concur — Murphy, P. J., Markewich, Bloom and Alexander, JJ.