Roberts v State Farm Fire & Cas. Co.
Annotate this CaseDecided on September 1, 2015
Supreme Court, St. Lawrence County
Christopher Roberts, Plaintiff,
against
State Farm Fire and Casualty Company, Defendant.
142806
Lynn Law Firm, LLP, Syracuse, (Martin A. Lynn of counsel), for plaintiff.
Barclay Damon, LLP, Rochester, (Mark T. Whitford, Jr. of counsel) for defendant.
Robert J. Muller, J.
The court is presented with a summary judgment motion on behalf of the defendant, State Farm Fire and Casualty Company (hereinafter State Farm) against its insured, Christopher Roberts. This is an insurance coverage action arising out of damage that allegedly occurred to the plaintiff's more than 100-year-old barn located at 208 River Road in Hammond, St Lawrence County. State Farm's theory is that the complaint must be dismissed because of a policy provision that covers only an "accidental direct physical loss," while this loss was caused by "wear, tear, and deterioration. . .wet or dry rot. . . and/or. . .a defect, weakness, inadequacy, fault or unsoundness in . . . design, specifications, workmanship, construction, grading, compaction . . . [or] materials used in construction or repair . . . or maintenance." The motion is supported by a three paragraph affidavit of Sarah G. Byer, P.E. in which she affirms that she inspected the loss location and thereafter "completed a written report, a true and accurate copy of which is attached...." The motion relies primarily upon this affidavit as well as a similarly brief affidavit of State Farm's claim representative which includes a certified copy of the policy at issue and a disclaimer which again includes a copy of the above-referenced written report of Sarah G. Byer, P.E.
On a motion for summary judgment, the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact (see Alvarez v. Prospect 246 Hosp., 68 NY2d 320, 324[1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Walton v. Albany Community Dev. Agency, 279 AD2d 93, 94—95[2001]). It is only when the movant satisfies its obligation does the burden shift to the nonmovant to present evidence demonstrating the existence of a triable issue of fact (see Lockwood v. Layton, 79 AD3d 1342, 1342—1343, [2010]; Huffner v. Ziff, [*2]Weiermiller, Hayden & Mustico, LLP, 55 AD3d 1009, 1011, [2008]; Horth v. Mansur, 243 AD2d 1041, 1042[1997]).
This report can only be characterized as unsworn as neither its author's brief affidavit nor the report itself make any representation that the report is in any manner sworn. Accordingly, State Farm is not entitled to summary judgment because it did not meet its initial burden, regardless of the sufficiency of plaintiff's opposing papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324, [1986]; LaFountain v. Champlain Val. Physicians Hosp. Med. Ctr., 97 AD3d 1060 [2012]). Such unsworn writings are inadmissible hearsay and insufficient to support a motion for summary judgment (see Falcon v. Duffy, 95 A.D.3d 1416 [2012]; Ulster County v. CSI, Inc., 95 AD3d 1634, [2012]; Anderson v. Persell, 272 AD2d 733 [2000]; Matter of Patricia YY. v. Albany County Dept. of Social Servs., 238 AD2d 672, 674[1997]; Welch v. Prevost Landowners, 202 AD2d 803, 804 [1994]). In this posture it is unnecessary to consider the plaintiff's opposition.
Defendant's motion for summary judgment, upon due deliberation, and following oral argument in Canton, New York on August 26, 2015 is denied in its entirety with costs and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order is returned to counsel for plaintiff for filing and service with notice of entry. The Notice of Motion dated July 15, 2015 has been filed by the Court together with the referenced submissions.
It is so ORDERED.
Dated: September 1, 2015
Lake George, New York
____________________________________
ROBERT J. MULLER, J.S.C.
ENTER:
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