Summary
holding that losses which occurred more than eight months before the commencement of the policy, and were known to the insured, were not covered under the insurance policy
Summary of this case from 40 Gardenville v. Travelers Prop. Cas. of AmericaOpinion
May 6, 1993
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
The IAS Court properly determined that plaintiff insured's claim for loss and damage to its retail store merchandise allegedly caused by dust, dirt and debris infiltrating and permeating the insured's premises as a result of a neighboring Metropolitan Transportation Authority subway construction project was not covered under the policy of commercial property insurance issued by the defendant to the plaintiff by reason of the plaintiff's failure to give timely notice of the claim "as soon as possible" as required by the policy (Power Auth. v Westinghouse Elec. Corp., 117 A.D.2d 336, 339), because the damages claimed occurred prior to the inception of the policy and were fully known to the plaintiff more than eight months before the commencement of coverage (Insurance Law § 1101 [a] [1], [2]; cf., Danzeisen Realty Corp. v Continental Ins. Co., 170 A.D.2d 432), because the plaintiff's failure to prevent the infiltration of the dust and dirt through its air conditioning and ventilation units barred coverage under the policy exclusion for damages caused by faulty maintenance, and because the damage to the property was due to "pollutants" or "contaminants" specifically excluded from coverage under the policy's pollution exclusion (Park-Ohio Indus. v Home Indem. Co., 975 F.2d 1215, 1219; Powers Chemco v Federal Ins. Co., 74 N.Y.2d 910, 911).
We have reviewed the plaintiff's remaining claims and find them to be without merit.
Concur — Sullivan, J.P., Carro, Wallach, Kupferman and Nardelli, JJ.