Bella-Vita LLC v Tower Ins. Co. of N.Y.
Annotate this CaseDecided on December 1, 2010
Supreme Court, New York County
Bella-Vita LLC, Plaintiff,
against
Tower Insurance Company of New York, Defendants.
104059/09
Plaintiff Attorneys:
Wenig, Saltiel & Greene, LLP
26 Court Street Suite 502
Brooklyn, NY 11242
Tel. (718) 797-5700
Anderson, Kill & Olick, Esqs.
1251 Avenue of the Americas
New York, NY 10020
Tel. (212)278-1000
Defendant Attorney:
Mound, Cotton & Wollan, Esqs.
One Battery Park Plaza
New York, NY 10004
Tel. (212) 804-4200
Louis B. York, J.
Plaintiff, Bella-Vista, is a property holding company that owns a five-story building at 211 Madison Street, New York, NY 10002 ("the Property"). Frank Pecora, the Plaintiff"s managing member, is also the property manager of the Property. Pecora normally visits the Property at least once a month.
In early May 2008, Plaintiff was seeking to lease the Property's basement for use as a bar or lounge. An interested lessee visited the Property but had difficulties entering the basement door. As a result of this complaint, Pecora went to the Property's basement on May 15, 2008. Pecora discovered that the floor in the doorway area was sagging. Because of the sagging, Pecora had a small section of the cement floor pieced open. Upon opening the cement floor, he discovered a rotting floor system made of wood with a steam pipe underneath. Plaintiff promptly notified its broker, requesting someone from its insurance carrier come and inspect the Property's [*2]damage.
On June 4, 2008, Defendant, Tower Insurance Company Of New York sent Paul J. Angelidas, a licensed professional engineer, to inspect the Property. When Angelidas arrived at the basement, he observed decaying wood underneath a four-inch concrete slab floor, with two visible piercings. The wooden floor below the concrete hovered over a small, unventilated crawl space. Angelidas also discovered a steam pipe below the wood flooring.
Angelinas opined that the extreme moisture from the damp and cramped crawl space was causing the wood to rot and deteriorate. He also believed that the condition existed for about 15 years. Moreover, Angelidas refuted the idea that a recent emanation of steam from a broken pipe, as the source of the decaying wood. Because of Angelidas' findings, Defendant denied Plaintiff's insurance claim for damages to the Property. Plaintiff disagreed and brought suit against Defendant, alleging breach of contract.
Plaintiff's complaint alleges that the damage to the Property occurred while the policy was active. Further, Plaintiff argues that it fully complied with the terms of the insurance policy, yet, Defendant failed to pay for its loss. Defendant argues that the insurance policy did not cover the type of loss suffered by Plaintiff. Furthermore, they assert that the damage to the Property derived from a condition that existed before the policy went into effect. As a result, Defendant moves for summary judgment seeking dismissal of the complaint.
Summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues." Andre v. Pomeroy, 35 NY2d 361, 364 (1974). Not only does summary judgment accelerate the litigation process, but it also precludes litigants from having their day in court. Id.
In a dispute over an insurance policy, if the policy's language is unambiguous, then the ordinary meaning governs. Westchester Fire Ins. Co. v MCI Communications Corp., 2009 NY Slip Op 32438U (Sup Ct, New York County 2009). Plaintiff obtained an "all risk" policy from Defendant that covered every physical loss to the Property. However, the policy excluded a number of enumerated "fortuitous and unforeseen event[s]." TAG 380, LLC v. ComMet 380, Inc.,10 NY3d 507 (2008). The issue before the court is whether Defendant's insurance policy excludes the cause of loss to the Property.
Under the terms of the policy, damages derived from "rust, corrosion, fungus, decay, [or] deterioration, hidden or latent defect in property that causes it to damage or destroy itself" are excluded from coverage. Policy Form CP 10 30 10 00, p. 2 of 7. In denying Plaintiff's insurance claim, Defendant relies on the expertise of a licensed engineer. Angelides observed that the "wood joists, beams and subfloor" in the basement were deteriorating, due "to high levels of moisture within the damp and unventilated crawl space." Angelides Aff., at ¶ 6 and ¶ 11. Decay and decomposition is clearly excluded from coverage according to the policy in question.
The insurance policy procured by Plaintiff also excludes damage caused by "[c]ontinuous or repeated seepage or leakage of water that occurs over a period of 14 days or more. Policy Form CP 10 30 10 00, p. 2 of 7. Angelides opined that extreme exposure of "water seepage to the crawl space" for a period over 15 years was the source of the damage to the wooden floors. Angelides Aff., at ¶ 13. Since water seeped onto the wooden flooring for more than14 days, the damaged resulting therefrom is not recoverable. 80 Broad Street Co. v. United States Fire Ins. Co., 88 Misc 2d 706, 707 (Sup Ct, New York County 1975)(water or "[m]oisture seepage comes [*3]within [the policy] exclusion). Furthermore, evidence suggesting that the damage began fifteen years ago supports Defendant's position, because conditions created prior to the policy's inception are excluded from recovery. Id. (underwriters are not responsible for "damage caused by [the] deteriorating" elements presently "within [the] goods").
This is not the first case of a subfloor decaying due to the lack of ventilation. Id.; see Aetna Casualty & Surety Co. v. Yates, 344 F.2d 939, 941 (5th Cir 1965) (policy did not cover damage "caused by...deterioration; rust, rot...[and] dampness of atmosphere"); see also TMW Enters. v. Fed. Ins. Co., 619 F.3d 574, 579 (6th Cir 2010) (if a "defective wall[ s] construction naturally and foreseeably leads to water infiltration, the language of the exclusion...ought to apply"). Therefore, constructing an unventilated crawl space is faulty design, because it is readily apparent that decay will ensue. See Aetna Casualty & Surety Co., at 941 (policy excludes losses from defective design of plaintiff's home). Given that the policy's coverage does not include property damage deriving from defective design, Plaintiff is further barred from recovery. See Policy Form 10 30 10 00, p. 3 of 7.
The Defendant's policy does cover losses with respect to the collapse of buildings. Policy Form 10 30 10 00, p. 6 of 7. However, Defendant limits the scope of collapse to include only an "abrupt falling down or caving in of a building." Id. Hence, a building in danger of collapsing is not covered under the policy. Moreover, a standing building is not in a collapsed state, "even if it shows evidence of cracking, bulging, sagging [or] bending." Id. Defendant points to this provision to nullify any inference that the Property is in a collapsed state. Cracks and sagging began appearing throughout the Property, and according to Plaintiff, "were a direct result" of the damage to the wood floors "in the basement." Pecora Aff., at ¶ 16. Since cracking and sagging are not covered causes of loss, Plaintiff cannot recover the damages to the Property under Defendant's policy. See Rector St. Food Enters., Ltd. v. Fire & Cas. Ins. Co. of Conn., 35 AD3d 177; 827 NYS2d 18 (1st Dept 2006) (building requiring demolition is not recoverable under defendant insurer's policy).
Defendant presents sufficient proof in admissible form to make prima facie showing for summary judgment. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). As a result, the burden shifts to Plaintiff "to [also] produce evidentiary proof in admissible form[,] sufficient to establish the existence of material issues of fact which require a trial." Id. However, Plaintiff's admissible evidence, which is limited to the complaint and Pecora's affidavit, fail to sufficiently raise an issue of fact. See Schultz v. Von Voight, 86 NY2d 865, 866 (1995) ("[p]laintiff's sole reliance upon allegations contained in his pleadings and bill of particulars...is insufficient to defeat the prima facie showing made by defendant"); see also Lloyd I. Isler, P.C. v. Sutter, 160 AD2d 609, 554 NYS2d 253 (1st Dept 1990).
Furthermore, Plaintiff's dependence on completing discovery is misguided, especially when the record reflects that they haven't complied with Defendant's discovery requests. Pancake v. Franzoni, 149 AD2d 575, 575-576 (2d Dept 1989) ("mere chance or hope that something will be uncovered if the plaintiff is provided with an opportunity to complete discovery[,] does not warrant the deferral of a ruling on a motion for summary judgment"). Therefore, the court grants Defendant's motion for summary judgment.
For the reasons given above, it is therefore
ORDERED and ADJUDGED that Defendant's motion dismissing this action is granted.
[*4]
Dated: December 1, 2010
ENTER:
____________________________
Louis B.York, J.S.C.
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