Opinion
June 9, 1998
Appeal from the Supreme Court, New York County (Carol Huff, J.).
Although defendant insurer made a sufficient showing that the insured premises had at the time of plaintiffs loss been "vacant or unoccupied beyond a period of sixty consecutive days" and, having established that circumstance, concomitantly made out a prima facie case for the applicability of the exclusion upon which it premised its disclaimer of coverage ( see, Northville Indus. Corp. v. National Union Fire Ins. Co., 89 N.Y.2d 621, 634), plaintiff, in response, made a sufficient demonstration that the subject premises, while vacant, were in the "course of renovation" and hence, that the subject policy's exception to that exclusion premised upon an ongoing "course of renovation" applied ( see, supra). The grant of plaintiffs motion for partial summary judgment as to liability was therefore proper. With regard to damages, we agree with the IAS Court that the insurer was barred from asserting policy language limiting replacement cost by its refusal letter repudiating the policy ( see, Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201, 217) and by its failure to raise the issue promptly ( cf., Harrington v. Amica Mut. Ins. Co., 223 A.D.2d 222, 224, lv denied 89 N.Y.2d 808). We have considered defendants remaining arguments and find them to be without merit.
Concur — Ellerin, J. P., Nardelli, Rubin, Andrias and Saxe, JJ.