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

214
CA 16-00989
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


RYAN NICASTRO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
DEFENDANT-RESPONDENT.


MARCUS & CINELLI, LLP, WILLIAMSVILLE (DAVID P. MARCUS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (ANTHONY G. MARECKI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered December 16, 2015 in a breach of contract action.
The order denied the motion of plaintiff for partial summary judgment
and granted the cross motion of defendant for partial summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing defendant’s seventh affirmative defense, and by denying the
cross motion, and reinstating plaintiff’s claim for full replacement
cost, and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this breach of contract action
seeking, inter alia, a determination that he is entitled to full
replacement cost coverage under the liability policy issued to him by
defendant for the loss sustained when a property that he owned was
destroyed by a fire. Three days after the fire, plaintiff, through
his agent, advised defendant that he “elect[ed] to exercise any
replacement cost options, which are or may become available.”
Plaintiff moved for partial summary judgment seeking, inter alia,
dismissal of defendant’s seventh affirmative defense, that plaintiff
is not entitled to replacement cost value because he did not make a
claim for replacement costs within 180 days of the loss and thus that
any claim would be untimely, and that the terms of the policy do not
entitle plaintiff to full replacement cost value. Defendant cross-
moved for partial summary judgment dismissing the complaint to the
extent that plaintiff alleges that he is entitled to full replacement
cost value of the property. Supreme Court denied plaintiff’s motion
in its entirety and granted defendant’s cross motion. We conclude
that the court erred in denying that part of plaintiff’s motion
seeking dismissal of defendant’s seventh affirmative defense and in
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                                                         CA 16-00989

granting defendant’s cross motion, and we therefore modify the order
accordingly.

      We agree with plaintiff that the provision requiring that a claim
for indemnification of costs of repair or replacement be made within
180 days is ambiguous and therefore must be construed against
defendant (see White v Continental Cas. Co., 9 NY3d 264, 267;
Harrington v Amica Ins. Co., 223 AD2d 222, 228, lv denied 89 NY2d
808). “If an ambiguity exists, the insurer bears the burden of
establishing that the construction it advances is not only reasonable,
but also that it is the only fair construction . . . , viewed through
the eyes of the average [person] on the street” (Harrington, 223 AD2d
at 228 [internal quotation marks omitted]; see Lachs v Fidelity & Cas.
Co. of N.Y., 306 NY 357, 364, rearg denied 306 NY 941). Section five
of the replacement cost provision of the policy provides: “You may
make a claim for the actual cash value amount of the loss before
repairs are made. A claim for any additional amount payable under
this provision must be made within 180 days after the loss.” The term
“claim” is not defined in the policy. Plaintiff contends that he made
a claim in compliance with the replacement cost provision by advising
defendant three days after the loss that he would seek replacement
costs for the premises. Defendant contends that plaintiff did not
comply with that provision because it required that plaintiff make a
“bona-fide” claim by “actually replacing and actually spending money
in excess of the actual cash value within 180 days of the loss.” We
conclude that defendant failed to establish as a matter of law that
its interpretation of the replacement cost provision of the policy is
the “only fair construction” of the provision (Harrington, 223 AD2d at
228).

     We further agree with plaintiff that, because he sustained a
total loss rather than a partial loss, the coinsurance provisions in
the policy providing for full replacement cost value only in the event
that “the limit of liability on the damaged building is at least 80
percent of its replacement cost at the time of loss” do not apply.
Instead, we agree with our colleagues in the Third Department in Magie
v Preferred Mut. Ins. Co. (91 AD3d 1232, 1235, quoting New York Life
Ins. Co. v Glens Falls Ins. Co., 184 Misc 846, 849, affd 274 App Div
1045, affd 301 NY 506), that, “in New York, a coinsurance clause
‘results in reducing the recovery in case of a partial loss, though in
case of a total loss, the insurer is liable for the amount named in
the policy.’ ” As the Court of Appeals explained with respect to a
coinsurance clause, “[w]here either the loss or the insurance equals
or exceeds 80 per cent of value, the clause has no effect, but when
both are less, the insured and the insurer bear the loss in certain
proportions. The amount of the insurance is not the variable factor,
but the amount of loss. The amount of insurance is at all times the
same, but when the loss is partial the insurer stands only a part,
unless the insurance is for the full percentage, whereas if the loss
is total, the insurer stands all, not exceeding the limit stated in
the policy” (Farmers’ Feed Co. of N.J. v Scottish Union & Natl. Ins.
Co., 173 NY 241, 247).
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                                           CA 16-00989




Entered:   March 31, 2017         Frances E. Cafarell
                                  Clerk of the Court
