181 S. Franklin Assoc., Inc. v Great Am. Ins. Co. of N.Y.
Annotate this CaseDecided on July 16, 2013
Supreme Court, Nassau County
181 South Franklin Associates, Inc., Plaintiff,
against
Great American Insurance Company of New York, Defendant.
7717/12
Mound Cotton Wollan & Greengrass
One Battery Park Plaza
New York, NY 10004-1486
Law Office of Craig A. Blumberg
Fifteen Maiden Lane, 20th Floor
New York, NY 10038
Anthony L. Parga, J.
Order to Show Cause, Affs & Exs.................................................................................. 1
Notice of Motion, Affs & Exs.......................................................................................... 2
Memorandum of Law in Support................................................................................... 3
Affidavit of Steven Heid................................................................................................... 4
Affidavit of John Kiernan, RPA...................................................................................... 5
Affidavit of Jonathan Bilow, P.E..................................................................................... 6
Affirmation in Opposition................................................................................................ 7
Affidavit in Opposition..................................................................................................... 8
Reply Affirmation & Exs.................................................................................................. 9
Memorandum of Law in Reply........................................................................................ 10
[*2]______________________________________________________________________________
Upon the foregoing papers, defendant's motion for summary judgment (Seq. 02), pursuant to CPLR §3212, is granted. Defendant's motion, brought by Order to Show Cause (Seq. 01), for a so-ordered subpoena to the Village of Valley Stream is denied as moot.
This action was brought by plaintiff to recover property damage to its building located at 181 South Franklin Avenue, Valley Stream, New York. Plaintiff alleges that it had a policy of insurance with defendant, Great American Insurance Company of New York (hereinafter "GMAC"), whereby defendant insured plaintiff for all risks of loss set forth in the policy. Plaintiff further alleges that the building suffered a loss on or about August 27, 2011, for which plaintiff submitted a claim to defendant. Plaintiff alleges that defendant has refused to pay plaintiff for its damages.
Defendant moves for summary judgment contending that the damage that plaintiff complains of existed "long before" Hurricane Irene on August 27, 2011 and was not caused by a covered cause of loss under the plaintiff's policy. In support of its motion, defendant submits, inter alia, a complaint received by the Village of Valley Stream prior to the alleged date of loss; an affidavit of Steven Heid, an employee who works in one of the offices in the building; an affidavit of John Kiernan, RPA, an independent insurance adjuster; an affidavit of Jonathan Bilow, P.E., a professional engineer; an interview conducted of plaintiff's principal, Morris Rubin, in which Mr. Morris admitted that he had not performed any exterior repairs to the building during his 20 year ownership; and a copy of the insurance policy at issue.
Defendant submits a complaint to the Village of Valley Stream, dated August 25, 2011, two days prior to the alleged date of loss, regarding a "huge crack on the outside of the building" at 181 South Franklin Street in Valley Stream. A second complaint to the Village of Valley Stream, dated August 30, 2011, is also submitted. Defendant further submits an affidavit of Steven Heid, an employee of Stile Associates, Ltd., which has its offices at 181 South Franklin Avenue, in Valley Stream. Mr. Heid attests that he advised the owner of the building, Morris Rubin, that the brick facade had suffered stress cracks, broken windows, and bent pillars due to an earthquake on August 23, 2011, and also advised him that a ceiling in one of his corner offices in Suite 402 had collapsed a year earlier due to heavy rainfall and had not been fixed. Mr. Heid further attests that during the time he has worked at the premises, "the building has received little to no exterior maintenance."
An affidavit of John Kiernan, RPA, an independent insurance adjuster employed by Independent Adjustment Company, is also submitted in support of defendant's motion. Mr. Kiernan attests that he inspected the premises, including the roof and exterior walls, in connection with GMAC's adjustment of plaintiff's claim. He attests that during his inspection, he observed no damage on the roof level, parapet walls or exterior walls that would indicate that the premises sustained physical damage as a result of Hurricane Irene. Mr. Kiernan attests that he witnessed cracked and spalling bricks that were pulling away from the primary building structure as a result of weathering through winters. He also attests that he took a recorded interview of Morris Rubin on October 27, 2011 (which is annexed to his affidavit) in which Mr. Rubin confirmed that he had not performed any exterior maintenance, repairs or renovations to the premises. He also attests that Mr. Rubin provided him with an annexed repair proposal, prepared [*3]by "Trice Contracting, Inc." in which Trice Contracting, Inc. notes repairs needed to "deteriorated mortar joints" and "deteriorated masonry bricks" from the premises' facade.
Finally, plaintiff annexes an affidavit of expert, Jonathan Bilow, P.E., a licensed professional engineer in New York since April 5, 2000. Mr. Bilow attests that he inspected the building on September 15, 2011 to ascertain the nature, cause and extent of the damage to the exterior of the premises. Mr. Bilow details his findings, annexes his report, and opines that the type of wind associated with Hurricane Irene, at 58 mph, would not cause the observed damage to plaintiff's building. He also opines that the damage observed to the facade of the premises "occurred as a result of long term wear and tear coupled with the owner's failure to maintain the Premises."
Defendant contends that the alleged loss is excluded under the terms of the policy at issue and that the plaintiff cannot establish that a fortuitous loss occurred. Defendant contends that its evidence demonstrates that the alleged damage pre-existed the hurricane and was caused by excluded perils - namely, long term wear and tear coupled with the owner's failure to maintain the premises. The policy at issue states specifically that GMAC will not pay for loss or damage caused by "wear and tear," "rust or other corrosion, decay, deterioration, spoilage, hidden or latent defect or any quality in property that causes it to damage or destroy itself;" or "settling, cracking, shrinking or expansion." In addition, the policy excludes damage caused by faulty, inadequate or defective "maintenance" and faulty, inadequate or defective "design, specifications, workmanship, repair, construction, renovation, remodeling, grading, and compaction." Further, the policy excludes damage caused by "continuous or repeated seepage or leakage of water, or the presence of condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more." The policy also excludes damage caused by "earth movement," including "earthquake." As such, defendant contends that plaintiff's loss is not covered loss under the policy at issue. (See generally, 80 Broad Street Co. v. U.S. Fire Ins. Co., 88 Misc 2d 706, 389 N.Y.S.2d 214 (Sup. Ct. NY Cty. 1975), aff'd 54 AD2d 888, 390 N.Y.S.2d 768 (1st Dept. 1976)(purpose of an all-risk policy is to protect against fortuitous event, it does not obligate the insurer to pay for loss or damage resulting wholly from nature and inherent qualities of property insured, specifically moisture causing damages over a forty year period); Cyclops Corp. v. Home Ins. Co., 352 F. Supp. 931 (D.C. Pa 1973)(holding that "wear and tear" means "simply and solely that ordinary and natural deterioration or abrasion which an object experiences by its expected contacts between its component parts and outside objects during the period of its natural life expectancy"); U.S. Dredging Corp. v. Lexington Ins. Co., 99 AD3d 695, 952 N.Y.S.2d 60 (2d Dept. 2012)(evidence presented demonstrated that the pier had been structurally compromised by years of wear and tear prior to its collapse so policy exclusion for wear and tear applied); Henry Modell & Co. v. General Ins. Co. of Trieste & Venice, 193 AD2d 412, 597 N.Y.S.2d 75 (1st Dept. 1993)(the plaintiff's failure to prevent the infiltration of the dust and dirt through its air conditioning and ventilation units barred coverage under the policy exclusion for damages caused by faulty maintenance); Simkowitz v. Firemen's Fund Ins. Co., 5 AD3d 283, 774 N.Y.S.2d 684 (1st Dept. 2004)(summary judgment granted to defendant, upon the grounds that the insurance policy's wear-and-tear exclusion applied, where there was no evidence that the gas leak was caused by anything other than the same ordinary wear and tear that caused the initial leaks); Goodman v. Broome County Co-Op Fire Ins. Co., 135 AD2d 906, 521 [*4]N.Y.S.2d 898 (3d Dept. 1987)(no coverage where policy water damage due to continuous seepage); Mutual Redevelopment Houses, Inc. v. Greater New York Mut. Ins. Co., 204 AD2d 145, 611 N.Y.S.2d 550 (1st Dept. 1994)(defendant entitled to summary judgment where damage was excluded from coverage under the policy as water leakage occurred over a period of exceeding 14 days)).
Defendant has made a prima facie showing of entitlement to summary judgment. (See, Jahier v. Liberty Mut. Group, 64 AD3d 683, 883 N.Y.S.2d 283 (2d Dept. 2009)). The proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v. Prospect Hosp., 68 NY2d 320 (1986)). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of a fact which require a trial of the action. (Zuckerman v. City of New York, 49 NY2d 557 (1980)).
In opposition, plaintiff submits its attorney's affirmation and an affidavit of its principal managing member, Morris Rubin. In his affidavit, Mr. Rubin attests that the building at issue suffered wind damage as a result of tropical storm Irene on August 27, 2011 in the amount of "at least $63,500." Mr. Morris further attests that the brick facade of the building was repointed in 2010 in "areas where it was needed." He also attests that "repairs to the exterior of the building and roof were undertaken as needed" and that "plaintiff has never failed to maintain the building or repair crucial structural damage." Mr. Morris further attests that he never received a letter from Steven Heid or anyone else about cracks due to the earthquake of August 23, 2011 or of the fallen ceiling that Mr. Heid referenced.
Plaintiff argues that discovery is needed in this action before summary judgment and that it is for a jury to determine the cause of the damage. Plaintiff further argues that the plaintiff's loss is not excluded under the policy and that in order to exclude coverage under an all risk policy, the defendant must prove that the loss arose from an excluded peril, which plaintiff contends that the defendant has failed to do here.
"Despite the all risk' coverage, [a]n insured seeking to recover for a loss under an insurance policy has the burden of proving that the loss occurred and also that the loss was a covered event within the terms of the policy.'" (U.S. Dredging Corp. v. Lexington Ins. Co., 99 AD3d 695, 952 N.Y.S.2d 60 (2d Dept. 2012), quoting, Vasile v. Hartford Acc. & Indem. Co., 213 AD2d 541, 624 N.Y.S.2d (2d Dept. 1995)). "A plaintiff bears the burden of establishing that the damage for which coverage is sought is a covered loss' under his insurance policy; the burden is on the insurer seeking to avoid policy coverage to establish that exclusions or exemptions contained in the policy apply in a particular case." (Czech v. Kelly, 26 Misc 3d 152(A), 961 N.Y.S.2d 537 (N.Y.Sup.App.Term 2012); See also, Jahier v. Liberty Mut. Group, 64 AD3d 683, 883 N.Y.S.2d 283 (2d Dept. 2009)).
Plaintiff fails to submit any expert affidavit in opposition to defendant's prima facie showing and the evidence submitted by plaintiff is insufficient to raise a triable issue of fact to warrant the denial of defendant's motion for summary judgment. (Bella-Vita LLC v. Tower Ins. Co. of NY, 29 Misc 3d 1233(A), 920 N.Y.S.2d 239 (N.Y.Sup.Ct. NY Cty. 2010); Schulst v. Von Voight, 86 NY2d 865 (1995); Czech v. Kelly, 26 Misc 3d 152(A), 961 N.Y.S.2d 537 [*5](N.Y.Sup.App.Term 2012); J & S Commercial Const., Inc. v. Cook, 26 Misc 3d 1221(A), 907 N.Y.S.2d 100 (NY Sup. Oneida Cty. 2010); see also, Capasso v. Capasso, 84 AD3d 997, 923 N.Y.S.2d (2d Dept. 2011)(holding that the plaintiff's affidavit presented a feigned issue of fact, designed to avoid the consequences of her earlier statement, and was insufficient to defeat the defendants' motion); Hunt v. Meyers, 63 AD3d 685, 879 N.Y.S.2d 725 (2d Dept. 2009); Hughes-Berg v. Mueller, 50 AD3d 865, 855 N.Y.S.2d 663 (2d Dept. 2008)). Where a movant makes a prima facie showing of entitlement to summary judgment, the non-movant is required to lay bare her proof in evidentiary form showing triable issues of fact in dispute. (Desena v. City of New York, 65 AD3d 562, 884 N.Y.S.2d 138 (2d Dept. 2009). The non-movant cannot merely cast doubt upon the movant's evidence through conclusory assertions, but instead must set forth evidence in opposition demonstrating a triable issue of fact. (Bank of Smithtown v. Beckhans, 90 AD2d 508, 454 N.Y.S.2d 1001 (2d Dept. 1982); Cusano v. General Electric Co., 111 AD2d 557, 489 N.Y.S.2d 622 (3d Dept. 1985)). "Mere surmise, suspicion, speculation, and conjecture are insufficient to defeat a motion for summary judgment." (Fredette v. Town of Southampton, 95 AD3d 939, 943 N.Y.S.2d 760 (2d Dept. 2012); Grassi & Co., CPAs, P.C. v. Janover Rubinroit, LLC, 82 AD3d 700, 918 N.Y.S.2d 503 (2d Dept. 2011)).
Further, the plaintiff failed to offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the defendants. (Cavitch v. Mateo, 58 AD3d 592, 871 N.Y.S.2d 372 (2d Dept. 2009); Woodard v. Thomas, 77 AD3d 738, 913 N.Y.S.2d 103 (2d Dept. 2010); Gasis v. City of New York, 35 AD3d 533, 828 N.Y.S.2d 407 (2d Dept. 2006)). It is well settled that the "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered" by further discovery is an insufficient basis for denying the motion. (Woodard v. Thomas, 77 AD3d 738, 913 N.Y.S.2d 103 (2d Dept. 2010); Simpson v. New York City Transit Authority, 44 AD3d 930, 844 N.Y.S.2d 108 (2d Dept. 2007); Lightfoot v. City of New York, 279 AD2d 457, 719 N.Y.S.2d 99 (2d Dept. 2001); Lopez v. WS Distribution, Inc., 34 AD3d 759, 825 N.Y.S.2d 516 (2d Dept. 2006)).
Accordingly, defendant's motion for summary judgment is granted, and plaintiff's action is hereby dismissed. As summary judgment is granted to defendant, defendant's Order to Show Cause for a so-ordered subpoena to the Village of Valley Stream is denied as moot.
Any request for relief not expressly granted herein is denied. This constitutes the decision and Order of this Court.
Dated: July 16, 2013
_________________________________
Anthony L. Parga, J.S.C.
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