Copr. © West 2000 No Claim to Orig. U.S. Govt. Works
554 N.Y.S.2d 3
160 A.D.2d 194
(Cite as: 554 N.Y.S.2d 3)
Supreme Court, Appellate Division, First
Department, New York.
YORKVILLE OF BROADWAY INC.,
ALLIANZ INSURANCE COMPANY,
April 3, 1990.
Insured brought action to recover $200,000 for water damage under a "special multiperil policy." Insurer asserted a first affirmative defense based on "concealment/fraud" provision of policy's standard fire policy endorsement. Insured moved to strike, inter alia, defendant's first affirmative defense. The Supreme Court, New York County, Stecher, J., entered order which, inter alia, denied insured's motion. Insured appealed. The Supreme Court, Appellate Division, held that "concealment/fraud" provision of policy's standard fire policy endorsement did not apply to water loss claimed by insured.
Modified and affirmed.
(Formerly 217k553(1), 217k552)
"Concealment/fraud" provision of "special multiperil" policy's standard fire policy endorsement did not apply to loss caused by water, where provisions of endorsement applied to the policy only when it covered "against loss or damage by fire, lightning or removal from premises endangered by fire or lightning.".
*3 D.T. D'Antonio, New York City, for plaintiff-appellant-respondent.
P. Kovner, New York City, for defendant-respondent-appellant.
Before SULLIVAN, J.P., and CARRO, MILONAS, ROSENBERGER and ELLERIN, JJ.
*4 Order, Supreme Court, New York County (Martin B. Stecher, J.), entered February 24, 1989, which, inter alia, denied plaintiff's motion to strike defendant's affirmative defenses, unanimously modified, on the law, to dismiss the first affirmative defense, and, except as thus modified, affirmed, without costs or disbursements.
In this action to recover $200,000 for water damage under a "Special Multi- Peril Policy", the defendant insurer asserted a first affirmative defense based on the "concealment/fraud" provision of the policy's Standard Fire Policy Endorsement. After expressly pleading that clause, defendant alleged specifically that plaintiff had submitted a sworn proof of loss setting forth a damage claim which "was grossly exaggerated and inflated to defraud defendant into making payment of a false and fraudulent claim." Contrary to the finding of the motion court in sustaining the first affirmative defense against plaintiff's motion to strike, the provisions of the Standard Fire Policy Endorsement do not apply to the loss herein, which was caused, not by fire, as the court assumed, but by water. As the endorsement makes clear, its provisions apply to the Multi-Peril Policy only when it covers "against loss or damage by fire, lightning or removal from premises endangered by fire or lightning." Thus, we modify to strike the first affirmative defense. In doing so, we need not reach plaintiff's alternative argument, namely, that the anti-fraud clause does not apply to fraud committed after the policy becomes effective. (See, e.g., Fiore v. State Farm Fire & Casualty Co., 135 A.D.2d 602, 603, 522 N.Y.S.2d 180.)
We have examined the other contentions on these cross-appeals and find that they are without merit.