30-40 East Main St. Bayshore, Inc. v. Republic Franklin Ins. Co.

CourtNew York Supreme Court Appellate Division
Writing for the CourtWILLIAM F. MASTRO
Citation74 A.D.3d 1330,904 N.Y.S.2d 740
Parties30-40 EAST MAIN STREET BAYSHORE, INC., et al., respondents, v. REPUBLIC FRANKLIN INSURANCE CO., et al., appellants.
Decision Date29 June 2010
904 N.Y.S.2d 740
74 A.D.3d 1330


30-40 EAST MAIN STREET BAYSHORE, INC., et al., respondents,
v.
REPUBLIC FRANKLIN INSURANCE CO., et al., appellants.


Supreme Court, Appellate Division, Second Department, New York.

June 29, 2010.

904 N.Y.S.2d 740

Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Lisa L. Gokhulsingh of counsel), for appellants.

Reilly, Like & Tenety, Babylon, N.Y. (Molander & Associates, Bohemia, N.Y. [Garth Molander] of counsel), for respondents.

WILLIAM F. MASTRO, J.P., HOWARD MILLER, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

74 A.D.3d 1330

In an action, inter alia, to recover damages for breach of a business owners insurance policy, the defendants appeal, as

904 N.Y.S.2d 741
limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), dated December 12, 2008, as denied that branch of their motion which was for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was for summary judgment dismissing the complaint, and substituting therefor a provision granting that branch of the motion which was for summary judgment dismissing all of the causes of action with the exception of the cause of action alleging

74 A.D.3d 1331
consequential damages, consisting of loss of rent not allowed in the appraisal process conducted pursuant to Insurance Law § 3404; as so modified, the order is affirmed insofar as appealed from, with costs to the defendants.

The plaintiff 30-40 East Main Street Bayshore, Inc., owned certain commercial property in Suffolk County. The plaintiff Louis J. Modica was the sole principal of that corporation. A number of tenants occupied various establishments at the property. On November 7, 2000, a fire broke out in one of the units, substantially destroying it, and damaging another of the units. At that time, there was a business owners policy of insurance in effect covering the premises, issued by the defendant Utica Mutual Insurance Company, which was affiliated with the defendant Republic Franklin Insurance Company (hereinafter together referred to as Utica or the insurer). The policy provided coverage for a number of categories of loss, such as damage to the subject building, as well as to "Covered Property," which included tenants' "improvements and betterments," consisting of such items as trade fixtures. In addition, the policy provided coverage for loss of "Business Income," as therein defined.

Following Utica's "net partial payment" to the plaintiffs in July 2001 in the amount of about $177,000, and the parties' failure to agree on the total amount of the loss sustained as a result of the fire, the plaintiffs brought this action in November 2002. They claimed damages in the amount of $375,000, allegedly arising from structural damage to the premises, to "permanent improvements" affixed thereto, as well as loss of business income in the...

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5 practice notes
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...Dep't 2001); Soule v. Soule, 252 A.D.2d 768, 770-71 (3d Dep't 1998). See 30-40 E. Main St. Bayshore, Inc. v. Republic Franklin Ins. Co., 74 A.D.3d 1330, 1333 (2d Dep't 2010); Gettner v. Getty Oil Co., 266 A.D.2d 342, 343 (2d Dep't 1999), There must be a comparison between the value of the p......
  • Pandarakalam v. Liberty Mut. Ins. Co., 2014-05901, Index No. 52498/12.
    • United States
    • New York Supreme Court Appellate Division
    • March 30, 2016
    ...contemplation of the parties when they executed the insurance policy” (30–40 E. Main St. Bayshore, Inc. v. Republic Franklin Ins. Co., 74 A.D.3d 1330, 1333, 904 N.Y.S.2d 740 ). A defendant does not meet its burden of affirmatively establishing its prima facie entitlement to judgment as a ma......
  • Almeida v. Wells
    • United States
    • New York Supreme Court Appellate Division
    • June 29, 2010
    ...connection with the second, third, and fourth causes of action, the sufficiency of Wells's opposition papers need not be addressed ( see 904 N.Y.S.2d 740Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). In view of the foregoing, the Supreme Court a......
  • Tai Ho Kang v. Young Sun Cho
    • United States
    • New York Supreme Court Appellate Division
    • June 29, 2010
    ...in which he stated that his no-fault benefits were terminated in October 2007, and he could not afford further treatment thereafter74 A.D.3d 1330( see Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741; see also Domanas v. Delgado Travel Agency, Inc., 56 A.D.3d 717, 868 N.Y.S.2d 132; Jules......
  • Request a trial to view additional results
5 cases
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...Dep't 2001); Soule v. Soule, 252 A.D.2d 768, 770-71 (3d Dep't 1998). See 30-40 E. Main St. Bayshore, Inc. v. Republic Franklin Ins. Co., 74 A.D.3d 1330, 1333 (2d Dep't 2010); Gettner v. Getty Oil Co., 266 A.D.2d 342, 343 (2d Dep't 1999), There must be a comparison between the value of the p......
  • Pandarakalam v. Liberty Mut. Ins. Co., 2014-05901, Index No. 52498/12.
    • United States
    • New York Supreme Court Appellate Division
    • March 30, 2016
    ...contemplation of the parties when they executed the insurance policy” (30–40 E. Main St. Bayshore, Inc. v. Republic Franklin Ins. Co., 74 A.D.3d 1330, 1333, 904 N.Y.S.2d 740 ). A defendant does not meet its burden of affirmatively establishing its prima facie entitlement to judgment as a ma......
  • Almeida v. Wells
    • United States
    • New York Supreme Court Appellate Division
    • June 29, 2010
    ...connection with the second, third, and fourth causes of action, the sufficiency of Wells's opposition papers need not be addressed ( see 904 N.Y.S.2d 740Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). In view of the foregoing, the Supreme Court a......
  • Tai Ho Kang v. Young Sun Cho
    • United States
    • New York Supreme Court Appellate Division
    • June 29, 2010
    ...in which he stated that his no-fault benefits were terminated in October 2007, and he could not afford further treatment thereafter74 A.D.3d 1330( see Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741; see also Domanas v. Delgado Travel Agency, Inc., 56 A.D.3d 717, 868 N.Y.S.2d 132; Jules......
  • Request a trial to view additional results

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