Playhouse Theatre, Inc. v. United States Fidelity & Guaranty Co. 23 A.D.2d 545

Order, entered on May 22, 1964, granting plaintiff’s motion for summary judgment against the defendant, United States Fidelity & Guaranty Company, and directing an assessment of damages, unanimously affirmed, with $30 'costs and disbursements to respondent. The language of the policy renders the defendant-carrier liable to the plaintiff assured for the “ rental value ” of such portions of the latter’s theatre rendered untenantable by reason of a fire which is one of the enumerated perils covered by the policy. The theatre having been rendered untenantable by reason of a fire there only remains to be determined the amount of the loss of “rental value” sustained by plaintiff. Since the policy provides for compensation “ whether [the premises are] rented at the time or not”, it is of n'6 consequence that the theatre was untenanted at the time of the fire. Nor does the claim that there is a triable issue as to whether plaintiff sustained any damages caused by the fire — unlike the rule applicable in negligence actions (Rubin v. Andino, 11 A D 2d 663) — bar the granting of summary judgment in this action considering the language of the policy on which it is based. Concur — Botein, P. J., Breitel, Rabin, Stevens 'and Staley, JJ.