Opinion
15756 Index No. 651327/21 Case No. 2021-03449
04-21-2022
3502 PARTNERS LLC, Plaintiff–Appellant, v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Defendant–Respondent.
Weg & Myers, P.C., Rye Brook (Joshua L. Mallin of counsel), for appellant. Mound Cotton Wollan & Greengrass LLP, New York (Kevin F. Buckley of counsel), for respondent.
Weg & Myers, P.C., Rye Brook (Joshua L. Mallin of counsel), for appellant.
Mound Cotton Wollan & Greengrass LLP, New York (Kevin F. Buckley of counsel), for respondent.
Renwick, J.P., Kapnick, Mazzarelli, Shulman, Pitt, JJ.
Order, Supreme Court, New York County (Arthur Engoron, J.), entered on or about September 17, 2021, which granted defendant's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, unanimously affirmed, without costs.
The documentary evidence conclusively establishes a defense to plaintiff's claims ( CPLR 3211[a][1] ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). The complaint alleges that plaintiff's property sustained damage "as a direct result of the excavation work at the [a]djacent [l]ot." The insurance policy issued by defendant contains an exclusion from coverage for "earth movement," e.g., "earth sinking (other than sinkhole collapse), rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty," and states that the exclusion applies "regardless of whether [the earth movement] is caused by an act of nature, man-made or is otherwise caused." Taken as true, the allegations in the complaint place the damage to plaintiff's property within the earth movement exclusion (see Bentoria Holdings, Inc. v. Travelers Indem. Co., 20 N.Y.3d 65, 68, 956 N.Y.S.2d 456, 980 N.E.2d 504 [2012] ). Contrary to plaintiff's contention, the complaint did not have to use the words, "earth movement," for the exclusion to apply, given that an excavation is "the intentional removal of earth by humans" (see id. ). Nor does the allegation that the damage to its property resulted from "the vibrations caused by the construction work," made for the first time in an affidavit in opposition to defendants’ motion, avail plaintiff, as no separate damage has been alleged (see Jones v. State Farm Fire & Cas. Co., 189 A.D.3d 1565, 1567, 138 N.Y.S.3d 609 [2d Dept. 2020] [insurance company did not dispute that property damage solely caused by vibrations from the backhoe was covered under the policy]).
Even if vibrations caused the damage, the excavation was still a contributing cause of the damage, and the policy states that there will be no coverage for loss or damage caused directly or indirectly by earth movement "regardless of any other cause or event that contributes concurrently or in any sequence to the loss" (see Sheehan v. State Farm Fire & Cas. Co., 239 A.D.2d 486, 487, 658 N.Y.S.2d 61 [2d Dept. 1997] ; Kula v. State Farm Fire & Cas. Co., 212 A.D.2d 16, 628 N.Y.S.2d 988 [4th Dept. 1995], lv dismissed in part and denied in part 87 N.Y.2d 953, 641 N.Y.S.2d 827, 664 N.E.2d 892 [1996] ).
We have considered plaintiff's remaining arguments and find them unavailing.