Opinion
No. 2021-02299 Index No. 606058/18
05-29-2024
Robert F. Parisi, respondent, v. Kingstone Insurance Company, et al., appellants.
McCauley Law Firm, PLLC, White Plains, NY (Todd M. McCauley of counsel), for appellants. Feldman, Kramer & Monaco, P.C., Hauppauge, NY (Leonard B. Chipkin of counsel), for respondent.
McCauley Law Firm, PLLC, White Plains, NY (Todd M. McCauley of counsel), for appellants.
Feldman, Kramer & Monaco, P.C., Hauppauge, NY (Leonard B. Chipkin of counsel), for respondent.
ANGELA G. IANNACCI, J.P. JOSEPH J. MALTESE HELEN VOUTSINAS CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action to recover damages for breach of an insurance contract and bad faith, the defendants appeal from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated December 29, 2020. The order granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability and denied the defendants' cross-motion for summary judgment dismissing the complaint.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging bad faith, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying that branch of the defendants' cross-motion which was for summary judgment dismissing the cause of action alleging bad faith, and substituting therefor a provision granting that branch of the cross-motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff is the owner of a house in Blue Point (hereinafter the subject property). In 2017, a leak from a refrigerator water line saturated a layer of fill earth inside the walls of the subject property, which in turn caused the foundation wall to collapse. The plaintiff submitted a claim to his insurer, Kingstone Insurance Company (hereinafter Kingstone). Kingstone denied coverage for the foundation damage on the ground that the insurance policy excluded damage caused by earth movement and/or water damage. The plaintiff commenced this action against Kingstone and its parent company, the defendant Kingstone Companies, Inc., to recover damages for breach of an insurance contract and bad faith in denying insurance coverage. The plaintiff moved for summary judgment on the complaint or, alternatively, for summary judgment on the issue of liability, and the defendants cross-moved for summary judgment dismissing the complaint. In an order dated December 29, 2020, the Supreme Court granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability and denied the defendants' cross-motion. The defendants appeal.
"In determining a dispute over insurance coverage, we first look to the language of the policy" (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 N.Y.2d 208, 221; see Gem-Quality Corp. v Colony Ins. Co., 209 A.D.3d 986, 990). "As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court" (White v Continental Cas. Co., 9 N.Y.3d 264, 267 [citation omitted]; see Baron v New York Mut. Underwriters, 181 A.D.3d 638, 640). Generally, in a dispute over insurance coverage, the insured bears the initial burden of establishing that the loss claimed falls within the scope of the policy (see McIntosh v Ronit Realty, LLC, 181 A.D.3d 581, 582; Bread & Butter, LLC v Certain Underwriters at Lloyd's, London, 78 A.D.3d 1099, 1101). Once coverage is established, the insurer has the burden of proving the applicability of an exclusion (see Seaboard Sur. Co. v Gillette Co., 64 N.Y.2d 304, 311; Castillo v Prince Plaza, LLC, 164 A.D.3d 1418, 1419-1420). "'Policy exclusions are to be strictly and narrowly construed and are not to be extended by interpretation or implication'" (Grenadier Realty Corp. v RLI Ins. Co., 218 A.D.3d 751, 753, quoting East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 150 A.D.3d 683, 686).
Here, the plaintiff demonstrated, prima facie, that the leak from the refrigerator water line was a covered loss. The subject insurance policy provides coverage for, among other things, a "loss caused by the accidental leakage, overflow, or discharge of liquids or steam from a plumbing, heating or air-conditioning system or domestic appliance." In opposition, the defendants failed to raise a triable issue of fact as to whether the foundation damage was excluded from coverage under either the earth movement or water damage exclusions of the policy (see Hudson v Allstate Ins. Co., 25 A.D.3d 654, 656; Novick v United Servs. Auto. Assn., 225 A.D.2d 676, 677). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging breach of an insurance contract and properly denied that branch of the defendants' cross-motion which was for summary judgment dismissing that cause of action.
However, the Supreme Court should have granted that branch of the defendants' cross-motion which was for summary judgment dismissing the cause of action alleging bad faith and denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on that cause of action. "[T]he cause of action alleging bad faith is duplicative of the cause of action alleging breach of contract, and 'there is no separate tort for bad faith refusal to comply with an insurance contract'" (Multani v Castlepoint Ins. Co., 221 A.D.3d 722, 725, quoting Schlusselberg v New York Cent. Mut. Fire Ins. Co., 206 A.D.3d 682, 683 [alterations omitted]).
The parties' remaining contentions need not be addressed in light of our determination.
IANNACCI, J.P., MALTESE, VOUTSINAS and LANDICINO, JJ., concur.