Congregation Chesed L'Avraham v Nationwide Mut. Ins. Co.

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[*1] Congregation Chesed L'Avraham v Nationwide Mut. Ins. Co. 2011 NY Slip Op 51590(U) Decided on August 23, 2011 Supreme Court, Kings County Rivera, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2011
Supreme Court, Kings County

Congregation Chesed L'Avraham d/b/a V'Kollel Ohel Moshe Society, Plaintiff,

against

Nationwide Mutual Insurance Company, Defendant.



19954/09

 

Atty for Plaintiff

Jeffrey A. Sunshine, P.C.

3000 Marcus Avenue - Suite 2E5

Lake Success, New York 11042

(516) 352-2100

Atty for Defendant

Paul J. Israelson, Esq.

54 Sunnyside Boulevard - Suite J

Plainview, New York 11803

(516) 576-0101

Francois A. Rivera, J.



By notice of motion filed December 9, 2010, the defendant Nationwide Mutual Insurance Company, (hereinafter "Nationwide"), moves under motion sequence two, for an order pursuant to CPLR 3212, dismissing the plaintiff's complaint on the grounds that the loss suffered by the plaintiff was not covered by their agreement.

Plaintiff opposes the motion.

BACKGROUND

On August 6, 2009, plaintiff filed a summons and verified complaint with the Kings County Clerk's Office. Defendant joined issued by an answer dated September 9, 2009. A note of issue was filed on October 21, 2010.

Plaintiff's verified complaint makes eleven allegations of fact in support of two causes of action sounding in breach of contract and consequential damages in the way of attorney's fees. [*2]

The plaintiff's complaint and bill of particulars allege the following salient facts. Plaintiff is a not-for-profit religious organization that maintains its principal place of business in the building located at 1848 East 7th Street in Kings County, New York. Defendant is an insurance company licensed to do business in the State of New York. At all relevant times, plaintiff and defendant were parties to an agreement insuring against certain types of damage to the real property at 1848 East 7th Street, Kings County, New York (hereafter "the subject building.")

Plaintiff further asserts that on December 12, 2008, storm water entered the subject building and caused damage. Plaintiff alleges that it timely notified the defendant insurance carrier of the loss; however, by letter dated February 6, 2009, defendant denied the claim.

Plaintiff seeks $179,727.00 in damages, attorney's fees and costs and disbursements.

MOTION PAPERS

Defendant's motion papers consist of a notice of motion, an attorney's affirmation, the supporting affidavit of Nationwide employee John E. Cook, the supporting affidavit of Vito Russo, an employee of a third party property damage adjusting company, McLarens Young International, (hereafter "McLarens"), purportedly hired by Nationwide to handle Congregation's claim related to the instant action, the supporting affidavit of structural engineer Sarah Gilewicz, an employee of an engineering firm, EFI Global Engineering of New York, P.C., (hereafter "EFI"), purportedly hired by Nationwide related to Congregation's claim in the instant action, twelve exhibits labeled A through L and a separately attached memorandum of law. Exhibit A consists of a record of the National Climatic Data Center pertaining to weather observations at John F. Kennedy International Airport. Exhibit B consists of the summons and verified complaint. Exhibit C consists of a report by McLarens employee Vito Russo pertaining to the plaintiff's insurance claim underlying the instant action. Exhibit D consists of an engineer's report by EFI employee Sarah Gilewicz pertaining to the plaintiff's insurance claim underlying the instant action. Exhibit E consists of a letter from defendant to plaintiff dated February 6, 2009 denying plaintiff's insurance claim. Exhibit F consists of the defendant's verified answer. Exhibit G consists of a stipulation between plaintiff and defendant whereby, among other things, plaintiff agrees to withdraw demands for non-contractual damages, including attorney's fees. Exhibit H consists of plaintiff's amended response to defendant's demands. Exhibit I consists of what plaintiff characterizes as its second amended response to interrogatories. Exhibit J consists of the insurance policy contract between plaintiff and defendant. Exhibit K is a copy of the deposition transcript of Congregation by Rabbi Salomon Lankry, dated August 3, 2010. Exhibit L is a copy of the deposition transcript of Congregation by Zarie Lankry.

Plaintiff's opposition consists of an attorney's affirmation and four exhibits [*3]labeled 1 through 4. Exhibit 1 is the affidavit of a building inspector, Alvin Ubell. Exhibits 2 and 3 are purportedly photographs of the plaintiff's damaged property at the subject building. Exhibit 4 consists of an excerpt of the deposition transcript of Nationwide by John Cook.

Defendant submitted a reply affirmation consisting of an attorney's affirmation, two certificates of conformity, the affidavit of Nationwide employee Susan Luquis, the affidavit of EFI employee Sarah Gilewicz, the affidavit of Nationwide employee John Cook, four exhibits labeled A through D and a separately attached memorandum of law. Exhibit A consists of a copy of defendant's demand pursuant to CPLR 3101(d). Exhibit B consists of the note of issue and certificate of readiness. Exhibit C consists of a record of the National Climatic Data Center pertaining to weather observations at John F. Kennedy International Airport.

LAW AND APPLICATION

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v. Kirchoff, 14 AD3d 493, 787 N.Y.S.2d 392 [2d 2005]; see also Andre v. Pomeroy, 35 NY2d 361, 364, 320 N.E.2d 853, 854 [1974]). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967, 520 N.E.2d 512, 513 [1988]; Zuckerman v. City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 719-720 [1980]) and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 574 [1986], citing Zuckerman, 49 NY2d at 562).

The proponents of a motion for summary judgment must first demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Manicone v. City of New York, 75 AD3d 535, 537, 905 N.Y.S.2d 640, 642 [2d 2010], quoting Alvarez, 68 NY2d at 324; see also Zuckerman, 49 NY2d at 562; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 643 [1985]). If the existence of an issue of fact is even arguable, summary judgment must be denied (Museums at Stony Brook v. Vil. of Patchogue Fire Dept., 146 AD2d 572, 536 N.Y.S.2d 177 [2d 1989]). Also, parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions (Nicklas v. Tedlen Realty Corp., 305 AD2d 385, 759 N.Y.S.2d 171 [2d 2003]; see also Akseizer v. Kramer, 265 AD2d 356, 696 N.Y.S.2d 849 [2d 1999]; Gibson v. American Export Isbrandtsen Lines, 125 AD2d 65, 74, 511 N.Y.S.2d 631, 636 [1d 1987]; Strychalski v. Mekus, 54 AD2d 1068, 1069, 388 N.Y.S.2d 969, 970 [4d 1976]; McLaughlin v. [*4]Thaima Realty Corp., 161 AD2d 383, 384, 555 N.Y.S.2d 125, 126 [1d 1990]). Indeed, in deciding a motion for summary judgment, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Pierre-Louis v. DeLonghi America, Inc., 66 AD3d 859, 862, 887 N.Y.S.2d 628, 631 [2d 2009], citing Nicklas, 305 AD2d at 385; Henderson v. City of New York, 178 AD2d 129, 130, 576 N.Y.S.2d 562, 563 [1d 1991]; see also Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106, 850 N.E.2d 653, 658-659 [2006]). Moreover, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent (Nationwide Prop. Cas. v. Nestor, 6 AD3d 409, 410, 774 N.Y.S.2d 357, 357-358 [2d 2004]; Katz v. PRO Form Fitness, 3 AD3d 474, 475, 769 N.Y.S.2d 903, 903 [2d 2004]; Kucera v. Waldbaums Supermarkets, 304 AD2d 531, 532, 758 N.Y.S.2d 133, 134 [2d 2003]). Lastly, "[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v. Griffin, 71 AD3d 1112, 1112, 898 N.Y.S.2d 590, 591 [2d 2010], quoting Scott v. Long Is. Power Auth., 294 AD2d 348, 741 N.Y.S.2d 708 [2d 2002]; see also Benetatos v. Comerford, 78 AD3d 750, 751-752, 911 N.Y.S.2d 155, 155-156 [2d 2010]; Lopez v Beltre, 59 AD3d 683, 685, 873 N.Y.S.2d 726, 728 [2d 2009]; Baker v. D.J. Stapleton, Inc., 43 AD3d 839, 841 N.Y.S.2d 382 [2d 2007]).

To obtain summary judgment dismissing a complaint alleging improper denial of coverage, an insurer (such as defendant) is under a burden to "prove that an exclusion in the policy applies to defeat coverage" (Fruit & Vegetable Supreme, Inc. v. Hartford Steam Boiler Inspection & Ins. Co., 28 Misc 3d 1128, 1131, 905 N.Y.S.2d 864, 868-869 [Kings Cty., 2010], citing Consolidated Edison Co. of NY v. Allstate Ins. Co., 98 NY2d 208, 774 N.E.2d 687 [2002]; Northville Indus. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621, 679 N.E.2d 1044 [1997]). "The burden on the insurer is a heavy one" (Fruit & Vegetable Supreme, Inc., 28 Misc 3d at 1131).

Neither party disputes that the subject policy was in effect during the subject storm. Moreover, neither party disputes the terms of the exclusions and limitations listed on the form titled "CAUSES OF LOSS — SPECIAL FORM" and numbered CP 10 30 06 95; the sole dispute is whether these exclusions from or limitations of coverage apply to this matter.

First, items B. 3. c. (2) and (4) state, in applicable part, that defendant "will not pay for loss or damage caused by or resulting from . . . Faulty, inadequate or defective . . . Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; [or] Maintenance[.]" Also, item C. c. states, in applicable part, that defendant "will not pay for loss or damage to property . . . caused [*5]by or resulting from rain, snow, sleet, ice, sand or dust, whether driven by wind or not, unless: (1) The building or structure first sustains damage by a Covered Cause of Loss to its roof or walls through which the rain, snow, sleet, ice, sand or dust enters; or (2) the loss or damage is caused by or results from thawing of snow, sleet or ice on the building or structure."

There is no allegation that this language is ambiguous. Also, there is no present dispute about whether plaintiff's notice of loss or defendant's disclaimer of coverage were timely made. Defendant's theory of the case is that either the storm rain alone caused the subject loss, or , alternatively, the loss was caused by plaintiff's failure to properly maintain the roof and drain.

Here, defendant attempts to demonstrate prima facie entitlement to judgment as a matter of law by submitting the affirmations of an outside adjuster and engineer, who inspected the roof and state, in essence, that the subject loss was not caused by a covered event, or, alternatively, was caused by plaintiff's failure to properly maintain the building. However, some of their findings are conclusory; for example, the outside insurance adjuster conducted inspections ten and seventeen days after the subject storm and saw extensive debris on the roof. The defendant uses this fact to establish poor maintenance on plaintiff's part. However, a trier of fact could reasonably conclude that the debris was caused by the subject storm and not by plaintiff's inaction.

Indeed, a trier of fact could find that virtually every item noted by defendant's inspecting adjuster and engineer—worn out air conditioning ducts, discolored patches of the roof surface, blocked or poorly functioning drains—could have been caused by the storm and not by plaintiff's failure to clean or maintain the building. The presence of debris or discolored areas on the roof—especially ten days after a storm—does not necessarily have probative value concerning how well residents maintained or cleaned the subject building.

Since this court must view the affidavits proffered by defendant in the light most favorable to the non-moving plaintiff (see e.g. Judice v. DeAngelo, 272 AD2d 583, 709 N.Y.S.2d 427 [2d 2000], citing Robinson v. Strong Mem. Hosp., 98 AD2d 976, 471 N.Y.S.2d 254 [4d 1983]), this court cannot find that defendant has established prima facie entitlement to judgment as a matter of law by submitting the affidavits of the inspecting adjuster and engineer.

Assuming that defendant had established prima facie entitlement to judgment as a matter of law, this court would nevertheless deny the motion because plaintiff has demonstrated the existence of triable issues of material fact. Among other things, plaintiff proffers the climactic data, which indicates wind gusts of up to 38 miles per hour on December 12, 2008. Also, plaintiff submits evidence that the HVAC ducts on the roof were damaged and could have allowed water to enter the building during the subject storm. A trier of fact could reasonably conclude that a covered event [*6]damaged the roof and rain water subsequently entered the building through the previously-damaged areas of the roof, and that, therefore, defendant should have provided insurance benefits to plaintiff for the subject loss.

In this dispute, the defendant carrier, based on opinions of its adjuster and engineer, reach conclusions about the storm, the roof and the water damage that differ from the conclusions reached by plaintiff. However, since "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . on a motion for summary judgment" (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 314-315, 819 N.E.2d 998, 1013 [2004], quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-2514 [1986]; see also Scott v. Long Is. Power Auth., 294 AD2d 348, 741 N.Y.S.2d 708 [2d 2002]), this court cannot find that either set of conclusions about the damaged roof and rain water are correct as a matter of law. The instant summary judgment motion must be denied.

The motion of defendant Nationwide Mutual Insurance Company for an order granting it summary judgment dismissing the verified complaint is denied.

The foregoing constitutes the decision and order of the court.

Enter:________________________________

J.S.C.