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ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED.

The First Department determined the insurer’s (National Specialty’s) motion for summary judgment dismissing the complaint was properly denied. The insurance policy excluded water-related damage. There was no question that the building housing plaintiff’s (Pastabar’s) refrigeration equipment was flooded during Hurricane Sandy. However, plaintiff alleged damage to the refrigeration equipment was caused by an electrical short when the electricity was turned on a month after the storm. The affidavit from the insurer’s expert did not refute plaintiff’s allegation:

In compliance with its obligations under its lease, Pastabar had bought a commercial package policy containing commercial general liability and property damage coverage from defendant National Specialty. * * *

National Specialty failed to establish prima facie that all of Pastabar’s claimed losses were caused by flood waters resulting from Hurricane Sandy … , and were thus within the insurance policy exclusion for water and floods. Based on photographs that Pastabar received from an unidentified neighbor, National Specialty’s expert made a finding concerning the exterior water level at the premises … . However, the expert never inspected the site or the electrical wiring. Therefore, the expert could not refute testimony by Pastabar’s manager that Pastabar suffered additional damage a month after the storm, when electricity was restored and caused “the melting of wires and burning of . . . most of the equipment.” Thus, the expert’s report never rose above the level of speculation … . Pastabar Café Corp. v 343 E. 8th St. Assoc., LLC, 2017 NY Slip Op 01305, 1st Dept 2-21-17

 

INSURANCE LAW (ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)/CONTRACT LAW (INSURANCE, ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)/HURRICANE SANDY (INSURANCE LAW, ALTHOUGH THE INSURANCE POLICY EXCLUDED WATER DAMAGE AND THE INSURED PROPERTY WAS FLOODED DURING HURRICANE SANDY, THE INSURER’S EXPERT’S AFFIDAVIT DID NOT REFUTE THE ALLEGATION THE INSURED PROPERTY WAS DAMAGED BY AN ELECTRICAL SHORT A MONTH AFTER THE STORM WHEN ELECTRICITY WAS RESTORED)

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