Opinion
Index No. 155806/2018 MOTION SEQ. No. 002
02-27-2024
BRONSTEIN PROPERTIES LLC and HEIGHTS 178 LLC, Plaintiffs, v. WESCO INSURANCE COMPANY, Defendant.
Unpublished Opinion
MOTION DATE 04/27/2021
PRESENT: HON. LOUIS L. NOCK Justice
DECISION + ORDER ON MOTION
Louis L. Nock Judge:
The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 57, 58, 59, 60, 61,62, 63, 64, 65, 66, and 67 were read on this motion for SUMMARY JUDGMENT.
LOUIS L. NOCK, J.S.C.
Upon the foregoing documents, the motion is granted for the reasons set forth in the moving and reply papers (NYSCEF Doc. Nos. 32, 43, 47, 64) and the exhibits attached thereto, in which the court concurs, as summarized herein.
Background
In this first-party insurance coverage declaratory judgment action, plaintiffs Bronstein Properties LLC and Heights 178 LLC are the managing agent and owner, respectively, of the building located at 506 West 178th Street, New York, New York. Defendant Wesco Insurance Company issued plaintiffs a Commercial Building and Personal Property Coverage insurance policy. The policy contains a notice provision, requiring plaintiffs to "give [defendant] prompt notice of [any] loss or damage" (policy, NYSCEF Doc. No. 37 at 70, CP 00 10 10 12 at 11 of 16, ¶ E[3][a][2]). Further, the policy limits suits against defendant to "2 years after the date on which the direct physical loss or damage occurred" (id. at 86, CP 00 90 07 88 at 1 of 2, ¶ D[2]).
On July 14, 2016, plaintiffs informed defendant of an ongoing issue at the building, namely that the New York City Department of Buildings had issued a violation for "cracks in the walls adjoining the elevator shift[sic]" (property loss notice, NYSCEF Doc. No. 36). Plaintiffs' engineer determined that the shaft was slipping from its foundations (id.). Per the engineer's report of June 2, 2016, he had been inspecting cracks in the building as far back as August 2014 (engineer's report, NYSCEF Doc. No. 58). In the process of preparing to support the elevator shaft, the engineer discovered a stream of sewage running beneath the building coming from somewhere outside of the building (id.). Defendant's engineer, after inspecting the premises, avers that the damage to the walls was caused by "long term and progressive settlement due to consolidation of underlying fill," and faulted the construction of the building over an underground drainpipe that channels an ancient stream beneath the building (Angelides aff, NYSCEF Doc. No. 43, ¶ 22). He found that the settlement of the building was not recent (id.). By contrast, plaintiffs engineer asserts that the damage was caused by sewage water diverted from a broken sewer pipe outside of the premises, and offers as proof the fact that the water flow dramatically increased in July 2016 and then abruptly ceased on August 13, 2016 (Jabour aff, NYSCEF Doc. No. 51, ¶¶ 36-54).
On May 31, 2018, defendant disclaimed coverage of any damage to the building. Defendant first stated that the circumstances of the damage, namely the settlement of the building following the sewage flow beneath the building, fell into coverage exclusions for normal settling, earth movement, structural impairment, and faulty workmanship (disclaimer, NYSCEF Doc. No. 37 at 1-4). In addition, defendant asserted that plaintiffs failed to provide prompt notice of the claim, and brought the instant action outside of the contractual limitation period for doing so (id. at 5-6).
Standard of Review
Summary judgment is appropriate where there are no disputed material facts (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof to warrant judgment as a matter of law (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]). Once a movant has met this burden, "the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial" (Kershaw v Hospital for Special Surgery, 114 A.D.3d 75, 82 [1st Dept 2013]). "[I]t is insufficient to merely set forth averments of factual or legal conclusions" (Genger v Genger, 123 A.D.3d 445, 447 [1st Dept 2014] [internal citation omitted]). Moreover, the reviewing court should accept the opposing party's evidence as true (Hotopp Assocs. v Victoria's Secret Stores, 256 A.D.2d 285, 286-287 [1st Dept 1998]), and give the opposing party the benefit of all reasonable inferences (Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985]). Therefore, if there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]).
Discussion
Defendant's late notice disclaimer cannot be sustained. "The insurer's rights shall not be deemed prejudiced unless the failure to timely provide notice materially impairs the ability of the insurer to investigate or defend the claim" (Insurance Law § 3420[c][2][C]). An insurer is prejudiced where there has been "a "material deprivation of its right to control the defense of the underlying claim" (Salvo v Greater New York Mut. Ins. Co., 213 A.D.3d 587, 588 [1st Dept 2023]). Here, defendant does not successfully allege that it has been prejudiced in its investigation of plaintiffs' claim.
However, the contractual limitation period bars plaintiff's suit (155th St. and 8th Ave. Realty Corp, v Natl. Cas. Co., 221 A.D.2d 290 [1st Dept 1995] ["Plaintiff insured's causes of action against defendant insurer . . . were properly dismissed as barred by the clear and unambiguous two-year period of limitations contained in the policy"]). The cracks were first inspected in August 2014 per plaintiffs' engineer (engineer's report, NYSCEF Doc. No. 58), almost four years prior to plaintiffs commencing the lawsuit on June 20, 2018. Giving plaintiffs the benefit of the most generous interpretation of when their loss occurred, i.e., when their engineer issued his report on June 2, 2016, such date is still more than two years prior to the commencement of this action. Plaintiffs offer no opposition to this particular argument in their papers.
Plaintiffs' claims are therefore time barred. As this constitutes an independent ground for granting the motion, the court declines to further consider whether defendant properly disclaimed coverage under the four policy exclusions listed in the disclaimer letter.
Accordingly, it is hereby, ORDERED that defendant's motion seeking summary judgment dismissing the complaint for a declaratory judgment and money damages is granted, and the complaint is dismissed; and it is further
ADJUDGED and DECLARED that defendant is not required to provide coverage for plaintiffs' damages under its policy.
This constitutes the decision and order of the court.