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CORTLAND v. FIREMEN'S INS CO

194 A.D.2d 117 (1993)

Cortland Pump & Equipment, Inc., Appellant, v. Firemen's Insurance Company of Newark, N. J., Respondent. (And Two Other Related Actions.)

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 2, 1993

Attorney(s) appearing for the Case

Hinman, Howard & Kattell, Binghamton (James S. Gleason and Amy Shapiro of counsel), for appellant.

Bower & Gardner, New York City (Sidney Rosen and Allen L. Sheridan of counsel), for respondent.

Vedder, Price, Kaufman, Kammholz & Day, New York City (John H. Eickemeyer of counsel, and Wiley, Rein & Fielding, Washington, D. C. (Laura A. Foggan and Nancy J. Lemay of counsel), for Maryland Casualty Company, amicus curiae.

Anderson, Kill, Olick & Oshinsky, P. C., New York City (Jerold Oshinsky, Andrew M. Reidy, Koorosh Taleih and Diane M. Horan of counsel), for W. R. Grace & Company, amicus curiae.

CARDONA, MAHONEY and CASEY, JJ., concur with MIKOLL, J. P.; MERCURE, J., dissents in part and concurs in part in a separate opinion.

MIKOLL, J. P.

On July 1, 1989, a customer at the Petr-All gasoline station in Onondaga County drove his vehicle away from a gas pump with the pump's nozzle still in the vehicle's gas tank, resulting in damage to the pump. Petr-All called plaintiff to repair the damage pursuant to a service agreement. However, plaintiff's repairman failed to perform a line test that...

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