J & R Electronics Inc. v One Beacon Ins. Co.

J & R Electronics Inc. v One Beacon Ins. Co. 2006 NY Slip Op 09047 [35 AD3d 169] December 5, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

J & R Electronics Inc., Appellant,
v
One Beacon Insurance Co., Formerly Known as CGU Insurance Company and Others, Respondent.

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Order, Supreme Court, New York County (Karla Moskowitz, J.), entered December 19, 2005, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

When calculating plaintiff's actual loss of business income as provided under the business interruption clause of the insurance policy, defendant properly deducted a payment already made to plaintiff for its damaged merchandise at the selling price. Plaintiff would otherwise have received a double recovery for these goods. Plaintiff's argument that the payment for the merchandise should not have been deducted at selling price because it was not received in the ordinary course of business, and that the lack of normal cash flow resulted in the loss of business opportunities, is essentially a request for consequential damages, which were not recoverable under the policy (see Brody Truck Rental v Country Wide Ins. Co., 277 AD2d 125 [2000], lv dismissed 96 NY2d 854 [2001]).

We have considered plaintiff's remaining contentions, including its request for additional discovery, and find them unavailing. Concur—Mazzarelli, J.P., Friedman, Sullivan, Williams and Gonzalez, JJ. [See 12 Misc 3d 1184(A), 2005 NY Slip Op 52307(U) (2005).]