Czech v Kelly

[*1] Czech v Kelly 2012 NY Slip Op 51701(U) Decided on August 31, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 31, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2010-2384 OR C.

Frank Czech, Appellant,

against

Edward J. Kelly, III, Defendant, -and- ALLSTATE INSURANCE, Respondent.

Appeal from a judgment of the City Court of Middletown, Orange County (Stephen W. Brockett, J.), entered February 11, 2010. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, dismissed plaintiff's cause of action against defendant Allstate Insurance.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, judgment is awarded to plaintiff on the issue of defendant Allstate Insurance's liability, and the matter is remitted to the City Court for a new trial limited to the issue of the damages to be awarded against defendant Allstate Insurance.

As relevant to this appeal in this small claims action, plaintiff seeks to recover from Allstate Insurance (Allstate), his insurer under his homeowner's insurance policy, for damage [*2]sustained to his breezeway roof following a March 2009 snowstorm. Plaintiff appeals from so much of a judgment, after a nonjury trial, as dismissed his cause of action against Allstate.

At trial, it was undisputed that plaintiff had a homeowner's insurance policy with Allstate which covered his breezeway roof. Allstate conceded that plaintiff's policy covered "sudden and accidental direct physical loss to property." However, the policy listed, among losses "we do not cover," those caused by "wear and tear, aging, . . . deterioration, inherent vice, or latent defect," as well as losses caused by "weather conditions that contribute in any way with a cause of loss excluded in this section . . ." It also excluded coverage for losses resulting from inadequate or defective design, repair, and construction. The policy stated that losses were not covered when there were two or more causes of loss, and the "predominant cause(s) of loss" fell within its excluded causes of loss.

A plaintiff bears the burden of establishing that the damage for which coverage is sought is a "covered loss" under his insurance policy (Fernandes v Allstate Ins. Co., 305 AD2d 1065 [2003]); the burden is on the insurer seeking to avoid policy coverage to establish that exclusions or exemptions contained in a policy apply in a particular case (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]). Ambiguities in insurance policies are to be construed against the insurer, and exclusions are to be construed narrowly (see Farm Family Cas. Ins. Co. v Habitat Revival, LLC, 91 AD3d 903, 904-905 [2012]).

The issue before the City Court was whether plaintiff's damage was excluded from the policy's coverage. At trial, experts testified on behalf of both plaintiff and defendant Allstate, and reports by both experts were admitted into evidence. Upon a review of the evidence, we find that the damage plaintiff sustained to his roof as a result of the March 2009 snowstorm was a covered loss under his insurance policy. We therefore conclude that the City Court's dismissal of plaintiff's cause of action against Allstate failed to render substantial justice according to the rules and principles of substantive law (UCCA 1804,1807). Accordingly, the judgment, insofar as appealed from, is reversed, judgment is awarded to plaintiff on the issue of Allstate's liability, and the matter is remitted to the City Court for a new trial limited to the issue of damages to be awarded against Allstate.

We note that we do not consider facts or issues raised by plaintiff which are dehors the record or are raised for the first time on appeal (see Terranova v Waheed
Brokerage, Inc., 78 AD3d 1040 [2010]; Devellis v Lucci, 266 AD2d 180 [1999]; Chimarios v Duhl, 152 AD2d 508 [1989]).

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: August 31, 2012