Callahan's Shursave, Inc. v. Traveler's Companies, Inc.

Order insofar as appealed from unanimously affirmed without costs. Memorandum: Plaintiff commenced an action against its insurer seeking to recover $21,141 for loss allegedly due to employee theft. Defendant thereafter moved for summary judgment on the ground that a policy exclusion prohibits plaintiff from proving loss solely by means of an inventory computation or a profit and loss computation, which, defendant argued, was what plaintiff had done in its claim. Special Term’s denial of defendant’s motion for summary judgment was proper. The policy excludes coverage against loss by the "unexplained or mysterious disappearance of property, the proof of which, either as to its factual existence or amount is solely dependent upon an inventory computation or a profit and loss computation”. Plaintiff has raised a triable issue of fact whether or to what extent the exclusion applies through the affidavits of its employees stating that at least some of plaintiff’s losses beyond those conceded by defendant were caused by employee theft and therefore were not "unexplained or mysterious” (cf., Teviro Casuals v American Home Assur. Co., 81 AD2d 814, affd for reasons below 54 NY2d 915; American Thermostat Corp. v Aetna Cas. & Sur. Co., 59 AD2d 965, lv denied 43 NY2d 647; Dunlop Tire & Rubber Corp. v Fidelity & Deposit Co., 479 F2d 1243). (Appeal from order of Supreme Court, Monroe County, Scudder, J. — summary judgment.) Present — Dillon, P. J., Boomer, Green, Pine and Balio, JJ.