—[*1] Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant.

Matthew S. Aboulafia, New York, for respondents.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered October 19, 2006, which vacated a prior judgment that had directed a verdict dismissing this action, and ordered a new trial, unanimously affirmed, with costs.

The directed verdict was based on the court's misapprehension of the state of the law concerning an exclusion for flood damage in a homeowners' policy, and not, as defendant urges, on a failure of proof or an inability to overcome the best evidence rule. Furthermore, the court did not err, upon reconsideration of the directed verdict, in finding that the exclusion for flood coverage did not apply where a pipe had burst (see Ender v National Fire Ins. Co. of Hartford, 169 AD2d 420 [1991]). Whether the exclusion for wear and tear applies is not at issue before this Court at this time; nor is the applicability of the best evidence rule, or the relevance of the partial payment by defendant for the claim. Concur—Andrias, J.P., Friedman, Marlow, Nardelli and Catterson, JJ.