Opinion
2015-01-2
Amber C. BLAIR and Mark C. Blair, Plaintiffs–Appellants, v. ALLSTATE INDEMNITY COMPANY, Defendant–Respondent. (Appeal No. 2.).
Demarie & Schoenborn, P.C., Buffalo (Joseph Demarie of Counsel), for Plaintiffs–Appellants. Goldberg Segalla LLP, Buffalo (Brian R. Biggie of Counsel), for Defendant–Respondent.
Demarie & Schoenborn, P.C., Buffalo (Joseph Demarie of Counsel), for Plaintiffs–Appellants. Goldberg Segalla LLP, Buffalo (Brian R. Biggie of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Plaintiffs appeal from an order granting their motion for leave to reargue and, upon reargument, adhering to the prior decision granting defendant's motion for summary judgment dismissing the amended complaint. Plaintiffs commenced this action for breach of contract, alleging that defendant breached its insurance contract with plaintiffs by failing to provide coverage for water and mold damage to the roof and interior of plaintiffs' home. Defendant denied coverage on the ground, inter alia, that the water intrusion was not a “sudden and accidental” occurrence.
Generally, an insured seeking to recover for a loss under an insurance policy has the burden of proving that a loss occurred and also that the loss was a covered event within the terms of the policy ( see Park Country Club of Buffalo, Inc. v. Tower Ins. Co. of N.Y., 68 A.D.3d 1772, 1773, 893 N.Y.S.2d 408). An insurer moving for summary judgment, however, has the initial burden of coming forward with admissible evidence establishing that the loss was not a covered loss or that the loss was excluded from coverage ( see Catalanotto v. Commercial Mut. Ins. Co., 256 A.D.2d 883, 883–884, 681 N.Y.S.2d 683; Gongolewski v. Travelers Ins. Co., 252 A.D.2d 569, 569, 675 N.Y.S.2d 299, 299lv. denied92 N.Y.2d 815, 815, 683 N.Y.S.2d 174, 174, 705 N.E.2d 1215, 1215). Contrary to plaintiffs' contention, defendant met its initial burden of establishing that the loss was not a covered “sudden and accidental” occurrence, and plaintiffs failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Thus, we conclude that, upon reargument, the court properly adhered to its original determination.
We do not reach plaintiffs' further contention, raised for the first time in their motion to reargue, that the water damage was the result of a “collapse” caused by the weight of ice and snow. It is well settled that a motion to reargue is not available to advance a new theory of liability ( see Sheldrake Riv. Realty, LLC v. Village of Mamaroneck, 106 A.D.3d 1075, 1076, 966 N.Y.S.2d 188; DeSoignies v. Cornasesk House Tenants' Corp., 21 A.D.3d 715, 718, 800 N.Y.S.2d 679), or to present arguments different from those originally asserted ( see William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8, lv. dismissed in part and denied in part,80 N.Y.2d 1005, 592 N.Y.S.2d 665, 607 N.E.2d 812, rearg. denied81 N.Y.2d 782, 594 N.Y.S.2d 714, 610 N.E.2d 387; Foley v. Roche, 68 A.D.2d 558, 567–568, 418 N.Y.S.2d 588).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.