Readers will recall photos of a tower crane damaged by Hurricane Sandy. Construction of the NYC high-rise building known as One57 was underway when the crane was lashed by hurricane-force winds. The crane jib was apparently blown backwards, and ended up dangling over the counterweight almost 1,000 feet in the air. Surrounding areas were temporarily evacuated, the jib had to be secured, and the crane was later replaced.

Insurance claims were submitted under a builder’s risk policy for the costs involved. The carriers denied the claims on the grounds that the “Contractor’s tools, machinery and equipment” are excluded from coverage. The owner and contractor noted in response that portions of the tower crane structure are part of the permanent building structure, and argued that the remaining elements of the tower crane are “temporary works” covered by the policy. Both sides filed motions for summary judgment early on in the case.

Round one has come to a draw. The trial court judge denied all pending motions for summary judgment, and directed discovery to move forward to address some of the fact issues that have been raised by the countering arguments. The case is Lend Lease Constr. LMB Inc. v. Zurich Amer. Ins. Co., 2015 N.Y. Misc. LEXIS 102, 2015 NY Slip Op 30039 (Jan. 15, 2015).