" Therefore, coverage is excluded and soft costs cannot be recovered. To the extent that the visqueen tarps in place of the permanent roof is concerned, this result is consistent with Diep v. California Fair Plan Assoc., 15 Cal. App. 4th 1205, 19 Cal. Rptr. 2d 591 (2d. Dist. 1993). In that case, the insured held a policy on a warehouse.
When a roof is sufficiently durable to serve the functional purposes described above, it is still a "roof within the ordinary understanding of that term, even if it is not necessarily permanent. Defendant, however, relies on three cases to support its argument that a roof, by its plain meaning, must be permanent: Camden Fire Ins. Ass'n v. New Buena Vista Hotel Co., 199 Miss 585, 24 So 2d 848 (1946); Diep v. California Fair Plan Ass'n, 15 Cal App. 4th 1205, 19 Cal Rptr 2d 591 (1993); and Aginsky v. Farmers Ins. Exch., 409 F Supp 2d 1230 (D Or. 2005). In our view, those cases provide less support than defendant perceives, and the most persuasive of the three cases cuts against defendant's position.
According to Farmers, a majority of jurisdictions have found that a tarp or temporary cover is not a "roof." In Diep v. California Fair Plan Ass'n, 19 Cal. Rptr. 2d 591 (Cal.Ct.App. 1993), the issue was whether plastic sheeting used to cover an exposed building top constituted a "roof." The court referred to dictionary definitions and determined that,
Nearly all — all but one, as far as we can tell — conclude that damage to a temporary plastic tarp covering a house is not damage to its "roof." In Diep v. California Fair Plan Ass'n, 15 Cal App 4th 1205, 19 Cal Rptr 2d 591 (1993), for example, the question was whether damage to plastic sheeting that had been used to cover an exposed building top constituted damage to the building's "roof" within the meaning of an insurance policy. The California court answered the question in the negative, explaining that
" Id. at 451 (alteration in original) (citation omitted). State Farm relies on Diep v. California Fair Plan Ass'n, 19 Cal.Rptr.2d 591 (Ct.App. 1993), a California state case decided several years after our court's decision in the Allstate case. However, Diep did not address the issue of efficient proximate cause.
(Diep v. California Fair Plan Assn. (1993) 15 Cal.App.4th 1205, 1207.) Liberally construing Perez's evidence and resolving any doubts about the propriety of summary judgment in his favor, we conclude the evidence was sufficient to show the trash corridor was a crowded mess that made it difficult and dangerous for janitorial staff to carry out their job duties.
Graphic Arts established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs' personal property loss was not the result of one of the insured perils ( cf. Wai Kun Lee v Otsego Mut. Fire Ins. Co., 49 AD3d 863, 864-865). Contrary to the plaintiffs' contention, the tarps that had been placed over the openings in the first floor ceiling of their building did not come within the definition of the term "roof as used in the "windstorm or hail" provision of the policy, which provided that damage to personal property caused by rain was not covered unless the rain entered the home as a result of wind or hail causing an opening in a "roof" ( see Camden Fire Ins. Assn. v New Buena Vista Hotel Co., 199 Miss 585, 594-597, 24 So 2d 848, 849-850; Diep v California Fair Plan Assn., 15 Cal App 4th 1205, 1208-1211, 19 Cal Rptr 2d 591, 593-594; Aginsky v Farmers Ins. Exch., 409 F Supp 2d 1230, 1234, 1236; Nooney v Tower Group Co., 2009 NY Slip Op 33229[U], *5-6 [Sup Ct, Queens County 2009]; cf. Dewsnup v Farmers Ins. Co. of Oregon, 349 Or 33, 36-38, 43-45, 239 P3d 493, 494-496, 499). In opposition to Graphic Arts' prima facie showing, the plaintiffs failed to raise a triable issue of fact ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
“After examining the facts before the trial judge on a summary judgment motion, an appellate court independently determines their effect as a matter of law.” (Diep v. California Fair Plan Assn. (1993) 15 Cal.App.4th 1205, 1207.) In doing so, “the appellate court applies the same legal standard as did the trial court.
In this regard, the court construes the moving party's affidavits strictly, construes the opposing affidavits liberally, and resolves any doubt about the propriety of granting the motion in favor of the party opposing it. ( Diep v. California Fair Plan Ass'n. (1993) 15 Cal.App.4th 1205, 1207.)
(Orange County Air Pollution Control Dist. v. Superior Court (1972) 27 Cal.App.3d 109, 113, 103 Cal.Rptr. 410.) In this regard, the court construes the moving party's affidavits strictly, construes the opposing affidavits liberally, and resolves any doubt about the propriety of granting the motion in favor of the party opposing it. (Diep v. California Fair Plan Assn. (1993) 15 Cal.App.4th 1205, 1207, 19 Cal.Rptr.2d 591.) DISCUSSION