        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

132
CA 14-00017
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


DOG DAY’S, INC., DOING BUSINESS AS DOG DAYS
OF BUFFALO, INC., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

HARTFORD FIRE INSURANCE COMPANY,
DEFENDANT-RESPONDENT.


VINAL & VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA LLP, BUFFALO (FALLYN CAVALIERI OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered September 10, 2013. The order, among other
things, granted defendant’s motion for summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff insured filed a claim on its fire
insurance policy with defendant insurer after plaintiff suffered a
fire loss on its property. As relevant to this appeal, defendant paid
plaintiff pursuant to the policy a certain sum of money as the actual
cash value for the losses at the property and eight monthly payments
for business interruption. Plaintiff commenced this action asserting
causes of action for breach of contract and breach of duty of good
faith and fair dealing after defendant suspended the payments for
business interruption. We conclude that Supreme Court properly
granted defendant’s motion for summary judgment.

     Plaintiff contends that the court erred in granting the motion
inasmuch as defendant failed to meet its burden of proof with respect
to the actual cash value of the losses at the property. We reject
that contention. Defendant complied with the “ ‘broad rule of
evidence’ ” applicable herein by submitting such information as the
purchase price of the property, the cost of improvements to the
property, the assessed value of the property, and the amount it
expended to repair and restore the property after the loss (Mazzocki v
State Farm Fire & Cas. Corp., 1 AD3d 9, 12; see Incardona v Home
Indem. Co., 60 AD2d 749, 749-750). In opposition, plaintiff failed to
challenge defendant’s actual cash value figure and therefore failed to
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                                                         CA 14-00017

raise an issue of fact (see generally Zuckerman v City of New York, 49
NY2d 557, 562).

     Contrary to plaintiff’s further contention, defendant met its
burden of establishing that it fulfilled its contractual obligations
to plaintiff with respect to the business interruption payments.
Defendant established that the business interruption coverage under
the policy applied only “during . . . period[s] of restoration,” but
that during the eight months that business interruption payments were
made, plaintiff made no effort to rebuild or repair the premises, or
to resume business operations, despite receiving an actual cash value
payment for the property within 3½ months of the loss (cf. Bi-Economy
Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 195-196). We
conclude that plaintiff likewise failed to raise an issue of fact that
it was entitled to further business interruption payments (see
generally Zuckerman, 49 NY2d at 562).

     Finally, we agree with defendant that the court properly granted
it summary judgment with respect to the cause of action for breach of
the implied covenant of good faith and fair dealing inasmuch as
defendant established as a matter of law that it did not act in bad
faith or unfairly in dealing with plaintiff, and plaintiff failed to
raise an issue of fact (see id.; Hunter v Deutsche Bank AG, N.Y.
Branch, 56 AD3d 274, 274).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
