Opinion
422 CA 21-00830
06-10-2022
S & J PROPERTIES OF WATERTOWN, LLC, Plaintiff-Respondent, v. The MAIN STREET AMERICA GROUP, Defendant-Appellant.
SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (VICTOR L. PRIAL OF COUNSEL), FOR DEFENDANT-APPELLANT. THE WARD FIRM, PLLC, BALDWINSVILLE (MATTHEW E. WARD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (VICTOR L. PRIAL OF COUNSEL), FOR DEFENDANT-APPELLANT.
THE WARD FIRM, PLLC, BALDWINSVILLE (MATTHEW E. WARD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.
Memorandum: Plaintiff owns commercial property insured by a policy issued by defendant and submitted a claim to defendant to recover damages for a bulging wall of the building. Defendant denied the claim, and plaintiff commenced this breach of contract action alleging that defendant wrongfully disclaimed coverage for damage to the property. Defendant moved for summary judgment dismissing the complaint, and Supreme Court denied the motion.
We agree with defendant that the court erred in denying its motion. Defendant met its initial burden on its motion by establishing as a matter of law that plaintiff's loss is not covered under the policy because it resulted from "deterioration," which condition was specifically excluded from coverage, and plaintiff failed to raise an issue of fact in opposition (see Lynch v. Preferred Mut. Ins. Co. , 194 A.D.3d 1460, 1461, 147 N.Y.S.3d 841 [4th Dept. 2021] ). Unambiguous policy provisions are to be given their plain and ordinary meaning (see Sanabria v. American Home Assur. Co. , 68 N.Y.2d 866, 868, 508 N.Y.S.2d 416, 501 N.E.2d 24 [1986], rearg denied 69 N.Y.2d 707, 512 N.Y.S.2d 1031, 504 N.E.2d 399 [1986] ; Catucci v. Greenwich Ins. Co. , 37 A.D.3d 513, 514, 830 N.Y.S.2d 281 [2d Dept. 2007] ), and the plain meaning of the exclusion in question "was to relieve the insurer of liability when its insured sought reimbursement for costs incurred in correcting ... deterioration of the subject [premises]" ( Garson Mgt. Co. v. Travelers Indem. Co. of Ill. , 300 A.D.2d 538, 539, 752 N.Y.S.2d 696 [2d Dept. 2002], lv denied 100 N.Y.2d 503, 762 N.Y.S.2d 873, 793 N.E.2d 410 [2003] ; see Catucci , 37 A.D.3d at 515, 830 N.Y.S.2d 281 ). Here, both defendant's expert and plaintiff's expert opined that the wall bulged due to deterioration of the bricks from exposure to moisture and freeze-thaw cycles. The only difference was that defendant's expert opined that the wall had been deteriorating over an extended period of time, whereas plaintiff's expert opined that the deterioration occurred over two months. Either way, the damage was the result of deterioration, and thus the policy exclusion applies and defendant is entitled to summary judgment (see 6 Montague, LLC v. New Hampshire Ins. Co. , 122 A.D.3d 451, 451, 996 N.Y.S.2d 258 [1st Dept. 2014] ; Catucci , 37 A.D.3d at 515, 830 N.Y.S.2d 281 ; Garson Mgt. Co. , 300 A.D.2d at 539, 752 N.Y.S.2d 696 ).
Plaintiff's remaining contention that the order should be affirmed because defendant failed to include a copy of the insurance policy with its motion papers is raised for the first time on appeal and is therefore not properly before us (see Matter of VanLoan [appeal No. 2] , 156 A.D.3d 1426, 1426, 65 N.Y.S.3d 885 [4th Dept. 2017] ; Chapman v. Pyramid Co. of Buffalo , 63 A.D.3d 1623, 1624, 881 N.Y.S.2d 246 [4th Dept. 2009] ).