Opinion
No. 020725/09.
2011-01-27
Brian CURRIE and Lisa Currie, Plaintiffs, v. Susan WILHOUSKI, Robert Wilhouski and Amica Mutual Insurance Company, Defendants.
Kaye & Lenchner, Esqs. Mineola, attorney for plaintiffs. McMahon Martine & Gallagher, LLP, Brooklyn, attorney for defendants Wilhouskis.
Kaye & Lenchner, Esqs. Mineola, attorney for plaintiffs. McMahon Martine & Gallagher, LLP, Brooklyn, attorney for defendants Wilhouskis.
Keller O'Reilly & Watson, PC, Woodbury, attorney for defendant Amica.
JEFFREY S. BROWN, J.
+------------------------------------------------------------------+ ¦The following papers were read on this motion:Papers Numbered ¦ +------------------------------------------------------------------¦ ¦Notice of Motion, Affidavits (Affirmations), Exhibits Annexed¦1 ¦ +-------------------------------------------------------------+----¦ ¦Answering Affidavit ¦2, 3¦ +-------------------------------------------------------------+----¦ ¦Reply Affidavit ¦4 ¦ +------------------------------------------------------------------+
Defendant, Amica Mutual Insurance (Amica), moves pursuant to CPLR § 3212 to dismiss plaintiffs' complaint or in the alternative pursuant to CPLR § 603 severing the claims against it. Plaintiffs, in opposition, ask this court to search the record pursuant to CPLR § 3212(b) and grant them summary judgment against all defendants.
Plaintiffs, Brian Currie and Lisa Currie, commenced an action for property damage against their neighbors, defendants Susan Wilhouski and Robert Wilhouski (Wilhouski). Plaintiffs reside at 107 Shoreview Road and defendants Wilhouski reside at 101 Shoreview Road in Manhasset, New York. It is alleged that there are contiguous retaining walls across the rear of plaintiffs' and defendant Wilhouski's properties. Plaintiffs allege that the retaining wall on the Wilhouski's property collapsed on or about May 7, 2009 causing a “chain reaction and/or zipper effect” thus causing property damage to plaintiffs' retaining wall. As part of their complaint, plaintiffs commenced a cause of action for declaratory judgment against their homeowner carrier, Amica Mutual Insurance Co.
Defendant Amica issued a homeowner's policy to plaintiffs effective May 10, 2008 to May 10, 2009 covering the plaintiffs' premises located at 107 Shoreview Road, Manhasset, New York. By letter dated May 27, 2009, Amica disclaimed coverage for this event in that this loss does not fall within the ambit of the additional collapse coverage of the Amica insurance contract or the “Section 1 Perils Insured Against.” Amica also contends that “First Party Property Exclusions” also apply which includes the “Earth Movement” exclusion and an exclusion for “faulty, inadequate or defective planning, zoning, development, surveying design, workmanship, repair, construction” of the retaining wall in issue.
Attached to the moving papers as an exhibit is a letter dated July 15, 2009 from Steven McEvoy, a structural engineer. He concludes that the retaining wall failed as a result of “lateral pressure from the retained slope soils and live loads at the top of the wall. The original retaining wall was not designed properly to support these loads. The retaining wall along 103 Shoreview Road was not maintained properly.” Furthermore, the “retaining wall that collapsed in the rear of the plaintiffs' property was the result of a chain reaction (zipper effect) due to the failure of the retaining wall on the property of # 103.”
In support of this application is an affidavit of Robert Waldner, Branch Claims Manager for Amica together with an affidavit from Amica's counsel. Incorporated by reference is the insurance policy in effect between Brian Currie and Amica for the period of May 10, 2008 until May 10, 2009 insuring the Currie property located at 107 Shoreview Road, Manhasset, New York. Also incorporated by reference is a disclaimer letter addressed to plaintiffs' counsel signed by David J. Murphy of the claims department.
In opposition to this motion, counsel for plaintiffs submits an affirmation. Plaintiffs also submit an affidavit from Steven McEvoy, licensed structural engineer, which mirrors his letter dated July 15, 2009. Plaintiffs argue that defendant Amica fails to provide any competent admissible proof. The language of the policy does not exclude coverage for retaining walls. Further, plaintiff argues that defendant Amica failed to provide any proof that damage was caused by any of the expressed exclusions as listed in the policy.
In opposition to this motion, counsel for defendants Wilhouski argues that summary judgment should be denied since it is premature due to the fact that discovery has not been completed; and it is procedurally defective as against them since defendants Wilhouski have not brought a summary judgment motion against the plaintiffs.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853;Zuckerman v. City of New York, 49 N.Y.2d 557, 562;Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hospital, 68 N.Y.2d 320;Zuckerman v. City of New York, supra, at p 562).
CPLR 3212(b) provides that a summary judgment motion “shall be supported by affidavit” of a person “having knowledge of the facts” as well as other admissible evidence ( see GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967). A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden. (JMD Holding Corp. v. Cong. Fin. Corp., 4 NY3d 373, 384 [2005];Brown v. City of New York, 22 Misc.3d 893).
In support of this application is an affidavit from Robert Waldner, Branch Manager for the defendant Amica, Long Island Regional Office. He incorporates by reference a “true and accurate” copy of the insurance policy that was in effect between plaintiff Brian Currie and defendant Amica. He also incorporates by reference a disclaimer letter from the Long Island Regional Office located in Providence, Rhode Island. This letter is signed by David J. Murphy of the claims department. The only other affirmation is from defendant's attorney who although states he is familiar with the facts, does not claim to have any “personal knowledge” of the facts.
On summary judgment, the “bare affirmation” of an attorney, which is not based upon personal knowledge of the facts, is “without evidentiary value.” ( See Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];Feratovic v. Lun Wah, Inc., 284 A.D.2d 368, 368–69, 725 N.Y.S.2d 892 [2d Dept.2001].) The “information and belief” of the attorney adds nothing ( see Henriquez v. Purins, 245 A.D.2d 337, 338, 666 N.Y.S.2d 190 [2d Dept.1997]; Wood v. Nourse, 124 A.D.2d 1020, 1021, 509 N.Y.S.2d 223 [4th Dept.1986] ), even when based upon the attorney's review of the client's file ( see Park Health Center v. Green Bus Lines Inc., 2002 N.Y. Slip Op 40029 [U], 2002 WL 416484 [App. Term 2nd & 11th Jud. Dists.; Building Management Co., Inc. v. Vision Quest of Flatbush, 1 Misc.3d 681] ).
As a result, defendant Amica has failed to meet its burden. First there is no admissible evidence from one having personal knowledge of the facts with respect to the property allegedly damaged. Defendant Amica's counsel's statement is insufficient to sustain its burden. Therefore, it is impossible for the court to make any determination as to whether coverage exists or whether any of the exclusions are applicable. As a result, defendant Amica has failed to make out a prima facie case of entitlement to judgment. Accordingly, since defendant failed to make out a prima facie case of entitlement to judgment as a matter of law, the court need not consider whether the plaintiffs' papers in opposition to the motion were sufficient to raise a triable issue of fact ( see Urbanski v. Mulieri, 287 A.D.2d 710;Trantel v. Rothenberg, 286 A.D.2d 325;Papadonikolakis v. First Fid. Leasing Group, 283 A.D.2d 470;Murphy v. Demas, 277 A.D.2d 208).
Defendant Amica's application for summary judgment is therefore DENIED. Furthermore, the request by plaintiffs for this court to search the record with respect to defendants Wiilhouski is likewise DENIED. CPLR 3212(b) does not permit the court to grant summary judgment, sua sponte, to a party absent a motion by some other party addressed to the specific issues ( see, Marsico v. Southland Corp., 148 A.D.2d 503;Conroy v. Swartout, 135 A.D.2d 945, 946–947;Andriano v. Caronia, 117 A.D.2d 640, 642–643;Jillsunan Corp. v. Wallfrin Indus., 79 A.D.2d 943;see also, Mihlovan v. Grozavu, 72 N.Y.2d 506). No such application for summary judgment was made by defendants Wilkouski.
With respect to defendant Amica's request to sever plaintiff's declaratory judgment action against it (Action 2) from the negligence action against the defendants Wilkouski (Action 1), such application is GRANTED.
The decision whether to grant a severance pursuant to CPLR § 603 is a matter of judicial discretion which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking severance ( see McCrimmon v. County of Nassau 302 A.D.2d 372;Finning v. Niagara Mohawk Power Corp., 281 A.D.2d 844;McIver v. Canning, 204 A.D.2d 698;Guilford v. Netter, 179 A.D.2d 801;see also Shanley v. Callanan Inds., 54 N.Y.2d 52, 57). Generally, a severance will not be ordered unless it is clear that some substantial right is in jeopardy or unless it appears that the prosecution of an action in which several causes of action or parties have been joined will result in confusion upon the trial, prejudice, or other injustice (N.Y.JUR, Actions, Section 72).
Before this court are two causes of action. The first one sounds in negligence where it is alleged that the defendants Wilkouski were negligent in allowing a retaining wall on their property to collapse, thus causing property damage on plaintiffs' property. The second cause of action is for a declaratory judgment where plaintiff asks this court to compel defendant Amica, plaintiffs' homeowner carrier, to cover the aforesaid alleged losses under the terms of this policy.
Permitting the two causes of actions to be tried together would cause confusion at trial. Further, the merits are unrelated, and trying them together could be prejudicial to one or more of the litigants. To permit the dispute as to insurance coverage to be tried before the same jury charged with determining the negligence issue would be prejudicial, since the jury would become aware of the existence of liability insurance coverage. “The specific knowledge of the dispute over insurance coverage would of necessity temper the thinking of the jury and unduly influence their verdict. The prejudice inherent in a situation of this sort should be avoided. (Transamerica Insurance Co. v. Tolis Inn, Inc., 129 A.D.2d 512;Kelly v. Yannotti, 4 N.Y.2d 603;Strauss v. Bennett Bros. Corp., 27 A.D.2d 528;Schwartz v. Jonathan Woodner & Co., 40 A.D.2d 1027;D'Apice v. Tishman, 919 Corp., 43 A.D.2d 925,;see also, McDavid v. Gunnigle, 50 A.D.2d 737, 738,).
Movant is directed to serve a copy of this order upon the DCM clerk. All applications not specifically addressed herein are denied.