Mt. Vernon Fire Insurance v. Bernstein

Order, Supreme Court, New York County (Ira Gammerman, J.), entered October 26, 1993, which, after a jury trial, declared that defendants-appellants are liable to the plaintiff for additional insurance premiums, and afforded related relief to plaintiff, unanimously affirmed, with costs. The IAS Court’s decision to limit the jury trial to the issue of the actual square footage of the insured premises was proper, both procedurally (see, Levitt v Lenox Hill Hosp., 184 AD2d 427, 428), and substantively. The policy does not limit plaintiff’s end-of-term earned premium adjustments to those made on the basis of "audits”. The insurer had the additional right to inspect at any time. Inspections may be held at the 270 discretion of the insurer and there is no restriction on using information gained in an inspection to adjust earned premiums after the audit period. No restriction prohibits adjustment of an earned premium on the basis of non-variable facts ascertained for the first time through an inspection. Had the parties intended to include any such restrictions, they could have done so (see, Slamow v Del Col, 174 AD2d 725, 726, affd 79 NY2d 1016). We have considered appellants’ remaining arguments, and find them to be without merit. Concur—Sullivan, J. P., Carro, Ellerin, Asch and Tom, JJ. [As amended by unpublished order entered Sept. 29,1994.]