Tower Insurance Company v Allstate Insurance Company

Tower Ins. Co. v Allstate Ins. Co. 2006 NY Slip Op 05776 [31 AD3d 630] July 18, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Tower Insurance Company et al., Respondents,
v
Allstate Insurance Company, Appellant.

—[*1]

In a subrogation action to recover proceeds under various property insurance policies, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered July 8, 2005, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

A fire occurred in the defendant's insurance office in Mount Vernon. The plaintiff insurance companies are subrogees of their insureds whose property was damaged. They brought this action on the theory that the fire was caused by the defendant's negligence.

The defendant established its prima facie entitlement to summary judgment by submitting evidence that the cause of the fire was undetermined and that the defendant committed no act from which a jury could rationally infer that it negligently caused the fire (see Indelicato v LJM Venture #1, 7 Misc 3d 129; Travelers Prop. Cas. v Gomez Supermarket, 195 Misc 2d 876 [2003]). In opposition, the plaintiffs' expert's opinion was based on speculation and was therefore insufficient to raise a triable issue of fact as to the defendant's liability (see Alloway v 715 Riverside Dr., 298 AD2d 148, 149 [2002]; Indelicato v LJM Venture #1, supra). [*2]

Under such circumstances, the defendant's motion for summary judgment dismissing the complaint should have been granted. Crane, J.P., Mastro, Skelos and Dillon, JJ., concur.