| Greenwich Ins. Co. v Volunteers of Am.-Greater N.Y., Inc. |
| 2009 NY Slip Op 03998 [62 AD3d 557] |
| May 21, 2009 |
| Appellate Division, First Department |
| Greenwich Insurance Company, Appellant, v Volunteersof America-Greater New York, Inc., Respondent. |
—[*1] Law Offices of Harvey & Vandamme, New York (Hendrick Vandamme of counsel), forrespondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered November 8,2007, which, in a subrogation action to recover damages caused by a fire in premises leased todefendant by plaintiff insurer's subrogor, granted defendant's motion for summary judgmentdismissing the complaint, and denied plaintiff's cross motion for summary judgment,unanimously affirmed, without costs.
Paragraph 12 of the lease, which obligates defendant to pay for damages specifically causedby fire only if the fire was "caused by [defendant's] actions," controls over paragraph 13, whichgenerally obligates defendant to pay for any damages "caused by [defendant] or any occupant orvisitor" (see Bank of Tokyo-Mitsubishi, Ltd., N.Y. Branch v Kvaerner a.s., 243 AD2d 1,8 [1998]). Since the fire was allegedly caused by defendant's subtenant smoking in bed, and notby defendant's own actions, defendant cannot be held responsible for the cost of repairing thedamage under the terms of the lease. We have considered plaintiff's other arguments and findthem unavailing. Concur—Mazzarelli, J.P., Friedman, Buckley, Acosta and Freedman, JJ.