Public Service Mutual Insurance v. Color West Photo, Inc. , 736 N.Y.S.2d 364 ( 2002 )

Order, Supreme Court, New York County (Louis York, J.), entered March 19, 2001, which, in a declaratory judgment action involving whether defendants commercial tenant and its liability insurer are obligated to defend and indemnify plaintiffs landlord and building manager in underlying actions for personal injury and property damage arising out of a fire in the building, granted plaintiffs’ motion for summary judgment declaring that defendants are so obligated, unanimously affirmed, with costs.

The insurance policy procured by defendant tenant from defendant insurer covers bodily injury or property damage resulting from defendant tenant’s ownership, maintenance or use of the leased premises if caused by, inter alia, “continuous or repeated exposure to substantially similar conditions,” and named as additional insureds plaintiff landlord and any person acting as the landlord’s real estate manager. Given these provisions, the declaration in favor of the landlord and managing agent was properly made upon uncontroverted evidence, gathered from a fire department record and depositions, that the fire started in the ceiling of the leased premises, and that the likely cause was constant heat on the ceiling joists generated by the HVAC unit used and maintained by the tenant and located in a loft that the tenant also used to store supplies. It does not avail defendants tenant and insurer that the underlying actions are for damages or injuries sustained by or in adjacent premises since such damages and injuries resulted from the tenant’s use of the insured premises. We have considered defendants’ other arguments and find them unavailing. Concur — Andrias, J.P., Saxe, Buckley, Friedman and Marlow, JJ.