JAMAICA PUBLIC SERVICE CO LTD v. LA INTERAMERICANA COMPANIA DE SEGUROS GENERALES SA (1999)

Order, Supreme Court, New York County (Charles Ramos, J.), entered March 26, 1998, which, to the extent appealed and cross-appealed from, denied defendants-appellants' motion for dismissal of the complaint or for summary judgment and denied plaintiff's motion for partial summary judgment, and order, same court and Justice, entered February 10, 1999, which, insofar as appealable, denied defendants-appellants' second motion for summary judgment, unanimously affirmed, without costs.

 While the coverage language indicates that the reasonable expectation of the parties (see, Album Realty Corp. v. Am. Home Assur. Co., 80 N.Y.2d 1008, 1010-1011, 592 N.Y.S.2d 657, 607 N.E.2d 804) was that there would be no coverage if a fuel explosion was the efficient physical cause of the accident (see, Home Ins. Co. v. Am. Ins. Co., 147 A.D.2d 353, 354-55, 537 N.Y.S.2d 516), we cannot, without improperly resolving credibility disputes among experts, say that a fuel explosion in the furnace, as set forth in the relevant exclusion, was the most direct and obvious cause of the event (see, Kula v. State Farm, 212 A.D.2d 16, 20, 628 N.Y.S.2d 988, lv. dismissed in part and denied in part 87 N.Y.2d 953, 641 N.Y.S.2d 827, 664 N.E.2d 892).  The motion court properly decided in the 1999 order that those expert reports stressed by plaintiff raise triable issues of fact, and admissibility problems with respect to them, if any, can be cured at trial (see, Chin v. Ademaj, 188 A.D.2d 579, 591 N.Y.S.2d 71).   We further agree with the motion court that no champerty defense applies at bar, since the “primary purpose” (see, e.g., Bluebird Partners, L.P. v. First Fid. Bank, N.A., 259 A.D.2d 273, 686 N.Y.S.2d 5) of the arrangement between the insured and the cooperating all-risk insurers was not the acquisition of a cause of action by a stranger to the underlying dispute (see, Bellarno Intl. v. Irving Trust Co., 165 A.D.2d 809, 560 N.Y.S.2d 287), and we agree that the trust agreement lacks any of the indicia of collusion and secrecy that mark a disfavored “Mary Carter” agreement (see, Leon v. J & M Peppe Realty Corp., 190 A.D.2d 400, 413-415, 596 N.Y.S.2d 380).   We have considered the parties' remaining arguments for affirmative relief and find them unavailing.

MEMORANDUM DECISION.