NEW YORK STATE ELEC. GAS v. LEXINGTON INS

We agree with the IAS Court that where plaintiff deliberately removed the blower spacer component from its generating plant for diagnostic testing and preventive maintenance, the resulting downtime cannot be deemed a fortuitous event within the meaning of the subject all risk policies, i.e., an event beyond plaintiff's control (see, A B Enters. v. Hartford Ins. Co., 198 A.D.2d 389, 390; see also, 80 Broad St. Co. v. United States Fire Ins. Co., 88 Misc.2d 706, 707, affd 54 A.D.2d 888, lv denied 42 N.Y.2d 801). We modify only because there was no reason to dismiss the complaint after declaring the rights of the parties (cf., Lanza v. Wagner, 11 N.Y.2d 317, 334).

We have considered plaintiff's remaining arguments and find them to be without merit. We would note that while the IAS Court misstated an aspect of plaintiff's claim as asserting that the "indication" found in the subject blower spacer was evidence of fatigue damage, the court's determination on this issue, which was well reasoned and is supported by a review of the record, did not turn on that characterization.

Concur — Sullivan, J.P., Carro, Ellerin, Wallach and Rubin, JJ.