IN RE: Bechir LOUATI (2018)

Order and judgment (one paper), Supreme Court, New York County (Manuel J. Mendez, J.), entered September 7, 2016, denying the petition to compel respondent to proceed with an appraisal, and dismissing the proceeding without prejudice to the commencement of a new proceeding after resolution of coverage issues in a plenary action, unanimously affirmed, without costs.

Petitioner seeks to compel respondent, which insured his home at all relevant times, to proceed with an appraisal to ascertain the amount of damages arising from petitioner's claimed covered loss to the property.  The court correctly found that policy coverage issues exist that must be resolved before an appraisal can proceed (see Insurance Law § 3408[c] ).

An issue exists as to whether the water damage on the floor of the first-floor bathroom was caused by a burst pipe (a covered cause of loss) or by another, excluded cause (see Matter of Pottenburgh v. Dryden Mut. Ins. Co., 55 Misc.3d 775, 778, 48 N.Y.S.3d 885 [Sup. Ct., Tompkins County 2017] [citing Kawa v. Nationwide Mut. Fire Ins. Co., 174 Misc.2d 407, 408–409, 664 N.Y.S.2d 430 [Sup. Ct., Erie County 1997] ).  An issue also exists as to whether petitioner's failure to retain the floor tiles for inspection is a basis to deny coverage (see Fuchs v. Sun Ins. Off., Ltd., 149 Misc. 600, 600–01, 267 N.Y.S. 83 [Mun. Ct., N.Y. County 1933], citing Johnson v. Hartford Fire Ins. Co., 94 Misc. 163, 167, 157 N.Y.S. 893 [App. Term, 1st Dept. 1916] ).

However, to the extent the parties dispute whether it was necessary to re-tile the entire first floor when the covered loss directly affected the bathroom only, or whether it was necessary to replace any floor tiles given respondent's failure, upon inspection, to observe any damage to the floor, these disputes present factual questions that are properly decided in an appraisal (see Pottenburgh, 55 Misc.3d at 777–778;  Quick Response Commercial Div., LLC v. Cincinnati Ins. Co., 2015 WL 5306093, *3–4, 2015 U.S. Dist LEXIS 120415, *6–9 [N.D. N.Y. Sept. 10, 2015] ).