Inter-Governmental Philatelic Corp. v Aspen Am. Ins. Co.

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Inter-Governmental Philatelic Corp. v Aspen Am. Ins. Co. 2021 NY Slip Op 31976(U) June 24, 2021 Supreme Court, Kings County Docket Number: 514795/2017 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 06/28/2021 03:33 PM INDEX NO. 514795/2017 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 06/28/2021 SUPREME COURT OF THE STA.TE Of NEW ·yo_RK :. CIVIL TERM: COMMERCIAL COUNTY OF KINGS ·s ------------.- --. -- .-----. .--------------- ------x INTER-GOVERNMENTAL PHILATELIC-- CORP .• , and IbEAL STAMP co.j INC;, _Plaintiff, Decision and order Index No. 51·4795/17 - aga'inst ·- ASPEN AMERICAN INSURANCE COMPANY, FINE "ART d/h/a FACE ARTS COVERAGE FINE and/or SERVICES INSURANCE :& COLLECTIBLES ENTERPRISES 718 INSURANCE AGENCY, INC., :q.nd YECHE_Z·-KEL ""CHESKY" KLEIN_,, ·ENTERPRISES., --- ------- -- - June24, 2021 Defendants, - - ~------ -- ---------x PRESENT·: HON_. LEON RUCHELSMAN· The def.endan.ts, Aspen .Arrierican Insurance Company, Fine Art ·.and Co·llect.:i.bles Enterprises thereinafte-r- FACE] and. 718" '.Insurance Agency Inc. , and YechezkeJ. Klein have all moved pursuant to CPLR §3212 seeking summary j·udgemertt dismissing the· lawsuit. p1aintiff ha-s opposed the mot.ions. In a.dditi,on, the defendant_$· have opposed the motions of the 0th.er defendants. submit~ed by the_ parti_es and.. ~.-rguni.e.nt he.ld. of all the .arguments, The Papers were After -careful rev-iew th:i,.s court now makes tl1.E:l following dete r:mina t ib_h . The pl.aintif'f· Irrter-Gcivern mental Philatelic Co:r:p., [hereinafter IGPCJ .is an entity thi3.t markets wholesale and commemorativ e stamps thrtJUghout the world. Plaint:i.ff Ideal stamp: Com_pany [hereina:fter- Ideal J buy.s and. s.:ells coJ,lec;=tible stamps. The two entities share the- same office space, rrtany of the sarri.e ~rnp._lpyees anci they are both owned by the same individuals. ·····'""'""'"""" '•"""'~----··-- ---------~--- 1 of 17 In - - ~ , - .. ,., .. , •. ,...,.,.,...,.~,_,..,m.,~••,••••• .. --.,•••~~~-• [*FILED: 2] KINGS COUNTY CLERK 06/28/2021 03:33 PM INDEX NO. 514795/2017 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 06/28/2021 the fall of 2014 the plaintiffs sought to obtain insurance and contacted a retail in$urance broker, defendant 718 Insurance. On November 3, 2014 defendant Yechezkel Klein of 718 Insurance Agency completed ari insurance applicatiort provided by FACE a wholesale insurance broker. and Ideal as insureds. That application included b9th IGPC Indeed, the application from both 718 and FACE included two entities, namely IGPC and Ideal. The defendant Aspen, the underwriter of the policy only listed plciintiff IGPC as the policyholder and named insured. During the summer of 2016 both companies decided to move from a warehouse in South Plainfield New Jersey to Brooklyn. During the move it was discovered that a cabinet full of stamps was missing. On August 17, 2016, Samuel Malamed,, one of the owners of both companies notified the police claiming that a cabinet containing valuable stamps was missing. No specific evidence of a theft was ever established and the cabinet containing the stamps was never found. a clairii for the lost stamps to Aspen. The plaintiffs submitted On August 3, 2017 Aspen declined coverage on the grounds that Ideal the owner of the stamps that were inside the cabinet was not a nam,ed insured on the policy and tha:t ih any event the sta:tnps were lost due to a mysterious disappearance and that such loss is .e;xcluded pursuant to t.he insurance policy. This lawsuit was com:tnenced.. and following the completion of discovery theS.e'. motions. have :been 2 --- - - - - - - - - - - - - - - - - - - - - - - - - -2-of - -17 ---------------"'"''''''""'""""- [*FILED: 3] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 filed. INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 The defendants argue they cannot be required to cover the loss Claimed and the lawsuit should be dismissed. The plaintiffs counter there are questions: of fact which must be resolved by a: jury, Conclusions of Law: Where the material facts a:t issue in a case are ih dispute summary judgment carmot be granted (Zuckerman v. City of New York, 49 NYS2d 557, 427 NYS2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause o.f any injury (Aronson v. Horace Mann-Barnard School, 214 AD2d 249, 637 NYS2d 410 [Pt .Dept., 1996]). However, where only one conclusion may be drawn from the facts then the question of legal ca.use ma.y be decided by the trial court as a matter of law (Derdiarian v. Felix Contracting Inc., 51 NY2d 308, 434 NYS2d 166 [ 1980]) . In Snell v. Atlantic Fire and Marine Insurance Company, 98 us 85, 8 Otto 85, 25 L.Ed. 52 [1878J the supreme Court held that where an insurance "contract from which, by mistake, material stipulations have been e>mitted, whereby the true intent and meaning o.f the parties are not fully or accurately expressed" then reformation of the Contract is appropriate. To hold 9the.rwise, th.e c:ourt explained, woµld allow the ''insurance company to obtain an unconscionable advantage, through a tnistakei for which its agents were chiefly respons.Tble" (io.) . 1 ·········-·····-·············--- 3 of 17 A mvtual. [*FILED: 4] KINGS COUNTY CLERK 06/28/2021 03:33 PM INDEX NO. 514795/2017 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 06/28/2021 mistake exists where both parties "share the same erroneous belief ahd their acts do not in fact accomplish their mutual intent" ( Healy v. Rich Products Corp. , 9 81 F. 2d 68: [ 2d. Cir. 1992]). Thus, to succeed upon a claim for reformation of a written agreement upon the grounds of mutual mistake, the party seeking reformation must establish, by clear ah convincing evidence "the agreement does hot accurately express the parties' intentions or previous oral agreement" (313'--315 West 125th Street LLC v. Arch Specialty Insurance company, 138 AD3d 601, 30 NYS3d 74 [Pt Dept., 2016]). In this case the applications and documentation from FACE ahd 718 both indicate that insurance- <was sought for IGPC as well Thus, a handwritten 'Dealer's Insurance Program' Form as Ideal. supplied by FACE listed both "Inter Governmental Philatelic Corp" and "Ideal Stamp Co" in the space to insert the 'Gallery's Name' (see, Form, submitted as Exhibit P within 718's motion for Summary Judgement). In addition, that handwritten form was then reduced to a typewritten form and again the Galleryis Name states ''Inter Governmental Philatelic -Corp/Ideal Stamp Co 0 {see; Form, submitted as Exhibit Q within 718's motion for Summary Judgement). Nevertheless, when the policy was actually written Aspen asserts that it "made no by Aspen it only included IGPC. mistake and dutifully acted on inf.ormation provided throuqh the plaintiffs' brokers, who acted solely in behalf.of the 4 4 of 17 -------•~••--•••- ••••h~~•••••-•-- -~ - - ------------------ [*FILED: 5] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 plaintiffs'' -(.see, tJ,Iemorandum in Support -of Aspen's -Motion .for Summary Ju<:l.ge:ment,. page 20), Aspen argues that neither FACE or. 718 ever realized there werei" two distinct companie.s seeking insur a rice . H.owev:e.r, the· f ai 1 ure o.f FACE- . or 71. a· to learn the true nature .of the two companies seeking coverage was surely a mistake on their part. Ir:rdeed, Mr. Klein, ·the repres,entativ e o:t Tl8 t.esti-fi.ed that "I was under the impression that both of :t:hese companies acteq in the_ exact _sarri.e capacity" (see, Deposition of Yechezke1 Kl_eiri, 'page 10.9). Mr. Klein admitt:ed he d_icl. not: know. how the two companies were treated. from a, corporate or tax pe:rspec.ti ve ·or how they were ·trea_ted reg·atding of f•icers arid din~c:tors blit that "I only know with the capacity that I was working with.the insured that the c.ompany opE:lrated under two names, it is ,a ve.ry comm.on practice" (id at pa.ge 1.10). L.i. kewis.e_, 'Kimberly Anderson a retiresentativ e .of FACE te.stified and st:ate.d she "made the assumption that Ideal Stamp Compariy ~ias a doing bu::.in~:ss n-9 r:n,e" fpr IGPC (see,_ Deposition of Kimberly· Anderson,. p~ge 21). Sh~ ad~itted sh~ n$V~r sought to veri£y that information and b_ased it on the fact .she believed ·on·e company ·was 'doing business as·' the other. been irtcci rre ct . She. admitted her as.sumpt.ion had There can be .no dispute that .FACE and 718 made 'mis.takers' concern.i,ng. the actua.L status of J;deal ·and th-us in conj_i.mction with the plaintiff's specific inclusion of Idep.l on the application, a mutual mistake surely existed. Aspen argues 5 5 of 17 ----------- ----------- -----··---·-····- ---··-··•·- --·-·"'"'"- ·---------- [*FILED: 6] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 that the applications "did not clearly distinguish between IGPC and Ideal" and that "different versions of the application ... list the intended named insured slightly differently, bolstering Aspen; s a.rgument that IGPC was the intended insured" (.§.§.§., Memorandum in Support of Aspen's Motion for Summary Judgement, pages 20; 21). However, there is no disagreement that IGPC was Nor the intended insured. does Aspen explain contract should not have also incLuded Ideal. why the insuranc::e The mere fact the applicati·on did not distinguish between IGPC and Ideal does not excuse Aspen's failure mistake. to include Ideal without relying upon a Likewise, if true that different applications contained slight differences regarding the names of the insured, again, Aspen's failure to inquire or verify the specific insµreds under the policy can only be described as a mistake. Aspen insists that there is no clear and convincing evidence the contract as reformed is the one "the pi;irties understood and intended for it to be" {see, Omnibus Memorandum of Law in Opposition to FACE Insurance Services'·, 718 Insurance Agency, Inc and Yechezkel ''Chesky" Klein's Motion ·for summary Judgement, page 14) . However, it is undisputed that IGPC and Ideal are distinct entities and that the application itself seeks coverage for both entit:ies. It is thus difficult for Asperi t::.o argue that .Mr~ Melamed, the owner of both entities. did not intend fo.r such dual cqverage. --·--···--··"··-·------ Moreover, Aspen ha.snot- sufficiently expl,3.ined why 6 of 17 ---------------------------····--·····"· . ·····--·····........--.. - .......- .. - [*FILED: 7] KINGS COUNTY CLERK 06/28/2021 03:33 PM INDEX NO. 514795/2017 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 06/28/2021 they actually failed to include Ideal within the policy. They argue that "neither wholesale broker FACE nor retail broker 718/Klein even knew that two separate companies wanted to be insured undE:!r the same policy" (see, Memorandum in Support of Aspen's Motion for Summary Judgement, page 20) . However, it has already been established and is even urged by Aspen that FACE ahd 718 were mistaken in those beliefs. Thus, Aspen really does not offer any compelling reason why they failed to insure Ideal as well. The failure to do so was nothing more than a mistake on its part. Whether Aspen, FACE or 718 can pursue claims against each other is beyond the scope of these motions, however, there can be no dispute the insurance contract must be reformed to includ:e Ideal as insured on Aspen's policy. The motion seeking such reformation is granted. Turning to the next issue, Aspen disclaimed coverage on the grounds the loss was the result of a mysterious disappearance for which no coverage is available and Aspen seeks summary judgernent that as a matter of law it is not required to provide coverage for the ,mysterious loss in this case. Page .$l of the Insurance Policy states that there is no payment for "missing property where the only proo·f of loss is unexplained or mysterious disappearance of covered property ... or any oth.e.r instance where there is no physical evidenc.e to show ioihat happened to the coveredproperty" ("Perils Ex.eluded" 7 - ........... _..... ..... .. -, ___ 7 of 17 [*FILED: 8] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 'Missing Propertyi 12(f)) ~ It is well settled that an insurance policy provision excluding coverage of a tnysterious loss does not exclude coverage when the loss has be·en caused by· theft (Gurfein Bros. Inc., v. Hanover Insurance Company, 248 AD2d 227, Dept., 1998].). 670 NYS2d 423 [Pt However, the precise language the exclusion will apply unless there is "physical evidence" of such theft has been held ambiguous (see, Moneta Development Corp., v. General Insurance Company of Trieste and Venice, 212 AD2d 428, 930 [1 st Dept., 1995]) . 622 NYS2d In Moneta a claim of theft was presented to the insurer after an officer of the company observed equipment had disappeared. The court held the policy provision that required physical evidence of a theft was ambiguous because it was open to two opposite yet reasonable interpretations. The insurer argued for a narrow interpretation which would include ''only evidence which i~ physically present after the property 1· s disappearance, such as a broken lock showing that there was a forced entry" (id.). However, the court adopted the interpretation of the insured and defined the term as arxy "descripti've evidence o.f a change in physical circumstances, which, in this case, would include the depiction by plaintiff I s officer of the physical presence of the property and of its subsequent physical absence." (id). The court explained that to hold othe.rwise would mean t,hat "even a theft which was actually .8 17- - - - - - - - - - · - - - - , · · · ·..·······----...,..•..•-····-,····.......... - - - - - - - - - - - - - - - - - - - - - -8 -of -- [*FILED: 9] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 observed by eyewitnesses, who watched as the thieves physically removed the property, would be excluded, merely because the thieves were skilled enough to leave no signs of forced entry behind them" (id). Further, the court emphasized that if "tangible remaining evidence of forced entry were required as proof of theft ... such provision could have been included in the policy" (id). Therefore, the court held the language ambiguous and denied the insurance company's motion seeking summary judgement. Indeed, many courts have struggled to classify the type of evidence tha:t would satisfy the 'physical evidence' requirement and whether that phrase is indeed ambiguous. Moneta inferred that eyewitness evidence would not satisfy the physical evidence requirement. However, in Blasair, Inc., v. Fireman's Fund Insurance Company, 76 Cal.App.4th 748, 90 Cal.Rptr2d 374 [Court of Appeal, Second District, Division 4, California 1999] the court held that eyewitness testimony of a the:Et is considered physical evidence. In that case, the insured, an entity doing business as Alert Communications, filed a claim: for goods allegedly stolen from their warehouse. There was no physical evipe.nce, as requifed by the policy, supporting the theft. Alert argued the term 'physical evidence' was ambi<;Jµous anci proposed a hypothetical '' scenc1rio in which. a percipient wit:rtess watches a burglar enter an insured' s building and leave ca.rrying property; 9 ---·--······-·······------ 9 of 17 [*FILED: 10] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 The burg1ar does not leave fingerprints, forced entryu (id}. footprints or signs of The court explained that "because the Policy uses the term 'physical evidence,' Alert contends that the exclusion might apply even though a witness can testify about the burglary" (id). The court rejected that contention and a:3serted "the answer to Alert' s hypothetical rec:1.lly is not in doubt" ( id) . The court concluded that "testimony about the physicalmovernents of a burglar into and out of a building and about the carrying of property woUld be testimony about physical evidence of theft" (id); While the court ultimately concluded the term 'physical evidence' was not ambiguous it clearly held that eyewitness testimony constituted the requisite physical evidence. National Grange Mutual Insurance Company v. In Elegant Slumming Inc., 59 A3d 92B [Supreme Court of Delaware, 2013]) the court disagreed and held that "to find that a requirement bf 'physical evidence' is satisfied exclusively by testimonial evidence would be contrary to the plain and ordinary meaning of the term. 'Physical evidence' means any article, object, document, or other thing of physical substance. record Accordingly, we hold that that testimonial evidence, by itself, is insu,fficient to constitute the 'physical evidence' intended by the coverage exciusion" (id) . There.fore, in th.at c,;3.se the .mysterioµs disappearance. exclusion which required '.physical evidence' was not satisfied rendering any insurance coverage unavailable. 1.0 10 of 17 ··-········-·"""·""---------------------------------------""•"-"'"•"··--··-····---···-·- [*FILED: 11] KINGS COUNTY CLERK 06/28/2021 03:33 PM INDEX NO. 514795/2017 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 06/28/2021 Likewise, in Seagull Enterprises LLC v. Travelers Property Casualty Company of America, 366 Fed.Appx. 97:9 [11 th Cir. 2010] the court agreed that statements made to an insurance agent did not constitute physical evidence. Essentially, Moneta held the term physical evidence was ambiguous because it was anomalous to require only tangible evidence to the exclusion of other relevant evidence such as eyewitness testimony of theft cir legitimate claims of theft .. Other courts have recognized this anomaly even though they have rejected its logical outcome. In Will Repair Inc. , v. Grange Insurance Company, 15 NE3d 386 [Court of Appeals of Ohio, Eight District, Cuyahoga County 2014] the court dismissed the insured's argument that "the policy's 'physical evidence' requirement for coverage of losses resulting from missing property is inconsistent with 'real world' scenarios in which 'missing property has obviously been stolen, and yet no one has any idea who committed the theft'" (id). The court further rejected the Contention the requirement "'essentially gUt[s] the Other provisions in the contract which purport to provide coverage Lor theft';, (id) . The court explained that "the policy's 'physical evidence' requirement for coverage Of losses from missing property (the 'missing property exclusion') does not require that an insured sol.ye a thef.t, .be able to sh.ow exactly what happen.eci to missing prope-rty, or establish who stole. missing property .in 11 ....·--··"-"··---··''·''. _____________________________ ________ 11 of 17 , ........,....... -... _,. .......................,,,,. __ .. . [*FILED: 12] KINGS COUNTY CLERK 06/28/2021 03:33 PM INDEX NO. 514795/2017 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 06/28/2021 order to obtain coverage for a theft loss. It simply requires some 'physical evidence' .of what happened to the missing property. ~e can envision a number of factual scenarios in which an insured would be able· to point to some physical evidence of what happened to its missing property and, thereby, obtain coverage under the policy even where a suspected 'theft' or other cause of property loss remains unsolved-for example, where a . . third-party theft occurs and is captured on videotape, a security alarm is triggered in connection with a loss, property damage such as broken doors, windows, or locks are found in connection with missing property, items used in connection with a suspected third-party theft are left behind, or the insured has some documentation establishing how and when covered property likely disappeared" (id) . Further, in C.T.S.C. Boston Inc., v. Continental Insurance company, 25 Fed. Appx. 320 [6 th Cir. 2001] the court disagreed with Moneta and held the plain language of the exclusion required the existence of actual physical evidence which by its very terms is not ambiguous. Therefore, the court granted the insurer's motion to dismiss the lawsuit when claims of stolen laptops were presented without ahy physical evidence. The court specifically 0 a.ddr.essed the anomaly er paradox raised by Moneta ano .concluded the fact "a term may have undesirable consequences, such as those described in Moneta, does not make .it .ambiguous" (id). Thus{ in 12 12 of 17 ·········-·-·-----··--···············""---····---------------------------- [*FILED: 13] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 WestCom Corp., v. Greater New York Mutual Insurance Cortipanv, 41 AD3d 224, 82 9 NYS2d 19 [1 st Dept., 20O7 l the insured alleged that digital line interface cards had been stolen from their property. These cards were "small, easily transported items of personal property" (id). The court held that even though there was evidence of a broken padlock, such evidenc1= did not provide the necessary physical evidence of a theft since there was no, proof the broken padlock led to a successful theft. In distinguishing Moneta and harmonizing C.T.S.C. Boston the court e:xplained that in Moneta the items that were missing were large and heavy which created a "sufficient inference of. theft to withstand summary judgement on the issue of whether the evidence 'show[s] what happ·ened to [the property]'" (id) . on the other hand, in WestCom the items were small and personal, therefore, they were susceptible to being accidentalJy lost without explanation. The court in WestCom further noted that C.T.S.C. Boston distinguished Moneta on "precisely the same ground" (id). While a careful reading of C.T.S.C, Boston reveals that i t disagreed with Moneta because it held the words 'physical evidence' was not ambiguous, it did address the distinction raised in a footnote. Thus, footnote 4 of C.T.S.C. Boston states "irt fairness to the Moneta court, we riote that it reached this problematic conclusion based, in large part,. on 'the :fact t!J.at a very large amount of heavy eqµipment di.sappea,red iti. a short period of time''. .. This reasoning 13 13 of 17 ··---·-··--······--"''------------------------------------········· . ··············"-"''································· [*FILED: 14] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 is less persuaBive in a case involving laptop computers, which are designed to be easily transported, ancl an undefined period of time in which the computers disappeared" (C.T.S,C, Boston,. . . supra). In any event Westt::om construed Moneta to narrow its applicability only in "Cases involving the unex.plained loss of heavy equipment or other massive items of .personal property" . (id). The distinction drawn between small, personal items for which the exclusion applies and large and perhaps heavy items where the exclusion may not apply is compelling. If the missing items are small, personal items their disappearance could be attributed to other facts, such as accidental or inadvertent loss, misplacement or some other disappearance not connected to any theft. By contrast, if: the items missing are large and could not so easily be explained by mishap, inadvertent misplacement or any other reason then such mere disappeari3.nce could be the necessary pnysical evidence to render the exclusion inapplicable. C. T . S . C, Boston er i t i ci zed Moh.eta' s cortcl us ion the m:e re £act the items were missing established physical evidence of the possibility of a theft. The court explained that ''this interpretation of the exclusion term as a whole is not reasonable as it conflates 'Ph~sic~l evidence' of th~ft with the ~~re f~~t that the property is 'missing. ' Under this interpretat.ion, there would always be ~physical evidencei: of what happened to missing 14 --·. ··-··········----------- 14 of 17 [*FILED: 15] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 property because the insured's mere description of the property as 'missing,' and presumed stolen, woµld count as 'physical evidence' of what happe-ned to it. This line of reasoning leads to the paradoxical conclusion that all missing property would be covereci by the policy when there is no physical evidence of what happened to it, based on the 'missing property' exclusion itself" (id) .. However, as explained, that categorical conflation would only be true if the items missing were small, pe.rsonal items whereby their disappearance could not primarily be attributed to any theft. By contrast, if the items missing are large and their disappearance cannot be expl,3.ined in any other i-Jay then the very disappearance could be the necessary physical evidence to render the exclusion inapplicable. For example, in Stella Jewelry Manufacturing Inc;, v. Naviga Belgamar Through Penem International Inc., 8 BS F. Supp. 84 placed [S. D. N. Y. 1995] the insured a bag containing jewelry on the ground to make room in the trunk of his vehicle. About ten seconds later the insured noticed the bag was missing. The court held the disappearance was not mysterious and that really the issue was the credibility of the custodian of the jewelry. The court explained that "there is no evidence from which one could deduce that the nylon bag had blown away .or been lost in any othe.r. rrianner than by theft. Under those circu:m:stan.ces no reasonable jury could reach the cohciusion that the l.oss occurreq_ .otherwise" {id). 15 15 of 17 ---·····. ·····················-. -·. , [*FILED: 16] KINGS COUNTY CLERK 06/28/2021 03:33 PM NYSCEF DOC. NO. 195 INDEX NO. 514795/2017 RECEIVED NYSCEF: 06/28/2021 Summarizing the above cases it is clear there is a disagreement whether eyewitness testimony can serve as physical evidence. More importantly, there is a Clear disagreement among various jurisdictions whether the physical eyidence requirement can ever be satisfied with less than tangible evidence, especially where the items -missing are large and not susceptible The opinions of Moneta and to easy or random disappearance, Wescom are sufficient New 'York authority that the disappearance of large items and the claim of a theft can satisfy the physical evidence requirement necessary to succeed on a claim of such stolen property. Indeed, any other interpretation of the 'physical evidence' requirement, where the items are large, really rests upon the competence of the th:Leves. A skilled and professional thief who is savvy enough to leave tw trace of his crime would foreclose an insurance claim since there is no evidence to substantiate the theft. However, a bungling or clumsy thief who is caught on videotape or trips an alarm or breaks a window would thereby permit such claim (Moneta, supra). The availability of insurance cannot rest upon so arbitrary and so fortu.i tous a distinction. To the extent other cases are not persuaded by that argmnent, this court is not bound by their guidance. In this easer, the cabinet that was reported stolen was lar9e enough that i t required.. three people to successfully mov.e it. 16 - - - - - - - - - - - - - - - - - - - - - -16 - -of-17 - - - - - - - - - - - - - · - - - · · - - ·..····-····. ···-- [*FILED: 17] KINGS COUNTY CLERK 06/28/2021 03:33 PM INDEX NO. 514795/2017 NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 06/28/2021 {see, Deposition of Samuel Melamed, page 83). The cabinet is not the sort of item such a diamond ring (Midlo Indiana Va Lumberman's Mutual Insurance Company, 160 So2d 314 [Court of Appeal of Louisiana, 4 th Circuit 1964] or a wristwatch (Johnson v. General Accident, Fire and Life Assurance Corp., 454 SW2d 837 [Court of Civil Appeals o.f Texas 1970]) which could have disappeared for arty number of reasons. Rather, the sheer size and weight of the cabinet necessarily impacts. its very disappearance (WestCorn, subra). Therefore, there are questions of fact whether the: cabinet is missing due to a theft and consequently the motion.s of the defendants seeking summary judgement is denied. Further, any issues relating to whether the loss occurred while: in transit are factual, summary determination. foreclosing any Thus, all motions seeking summary judgement are denied. So ordered. ENTER: DATED: J.une 24, 2021 Broo.klyn N.Y. Hon. Leon Ruchelsman JSC 17 17 of 17 --------------------------·-·-·----·--···-----······-··------

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