BELLARA DIAMOND CORP v. FIRST SPECIALTY INSURANCE CORP

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Supreme Court, Appellate Division, First Department, New York.

S. BELLARA DIAMOND CORP., Plaintiff-Respondent, v. FIRST SPECIALTY INSURANCE CORP., Defendant-Appellant.

Decided: October 23, 2001

ROSENBERGER, J.P., WILLIAMS, TOM, WALLACH and FRIEDMAN, JJ. Lawrence B. Newman, for Plaintiff-Respondent. Andrea Sacco Camacho, for Defendant-Appellant.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about August 2, 2000, denying defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court correctly held that defendant insurer failed to meet its burden of proving, as a matter of law, that the “unexplained loss/mysterious disappearance” exclusion in the subject jeweler's block policy is applicable to the instant facts (see, Gurfein Bros. v. Hanover Ins. Co., 248 A.D.2d 227, 670 N.Y.S.2d 423).   Plaintiff insured surmised that he accidentally threw the paper parcel of diamonds into the garbage as he hurriedly cleaned off his desk before going to lunch.   This explanation, supported by circumstantial evidence, if believed by the trier of fact, could reasonably support an inference that the diamonds were accidentally thrown away (see, id.).   Accordingly, it cannot be said at this juncture that the alleged loss is one for which the insured can furnish “no explanation whatsoever” (cf., Maurice Goldman & Sons v. Hanover Ins. Co., 179 A.D.2d 388, 578 N.Y.S.2d 551, affd. 80 N.Y.2d 986, 592 N.Y.S.2d 645, 607 N.E.2d 792).