Baluk v. N.Y. Cent. Mut. Fire Ins. Co.

• Decision Date: 20 March 2015
• Citation: 6 N.Y.S.3d 917 (Mem),2015 N.Y. Slip Op. 02391,126 A.D.3d 1426
• Parties: Svetlana BALUK and Mark Osilovskiy, Plaintiffs–Appellants, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1426

6 N.Y.S.3d 917 (Mem)

2015 N.Y. Slip Op. 02391

Svetlana BALUK and Mark Osilovskiy, Plaintiffs–Appellants

v.NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant–Respondent.

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

March 20, 2015.

Opinion

Motion insofar as it seeks in the alternative leave to appeal to the Court of Appeals denied and the motion insofar as it seeks leave to reargue, deemed a motion seeking leave to renew (see CPLR 2221[e][2] ; Karlin v. Bridges, 172 A.D.2d 644, 645, 568 N.Y.S.2d 444 ), is granted in part and, upon renewal, the memorandum and order entered February 7, 2014 (114 A.D.3d 1151, 979 N.Y.S.2d 890 ) is amended by deleting the ordering paragraph and substituting the following ordering paragraph:

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying defendant's motion and reinstating the complaint, and modified the order is affirmed without costs.

The memorandum and order is further amended by deleting the memorandum and substituting the following memorandum:

Plaintiffs commenced this action alleging that defendant breached its obligations under their homeowner's policy when it failed to reimburse them fully for sums they expended to repair or replace damage resulting from “puff-back” from their malfunctioning furnace. We conclude that Supreme Court erred in granting defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a)(1) and (7), and we therefore modify the order by denying that motion and reinstating the complaint.

The loss settlement provision of the policy states that defendant will pay the cost to repair or replace an insured building, “but not more than the least of the following amounts: (1) [t]he limit of liability under [the] policy that applies to the building; (2) [t]he replacement cost of that part of the building damaged with material of like kind and quality and for like use; or (3) [t]he necessary amount actually spent to repair or replace the damaged building.” That provision further states that defendant “will pay no more than the actual cash value of the damage until actual repair or replacement is complete.” Another provision in the policy states that “[n]o action can be brought against [defendant] unless there has been full compliance with all of the terms under [the Conditions] Section ... of [the] policy and the action is started within two years after the date of loss.” Defendant made payments to plaintiffs for the actual cash value of the damage, but refused to pay the full cost of their repairs, including...