Opinion
02-11-2016
Mark SQUAIRS and Mary Squairs, Plaintiffs–Respondents, v. SAFECO NATIONAL INSURANCE COMPANY, A Liberty Mutual Company, Defendant–Appellant.
Finazzo Cossolini O'Leary Meola & Hager, LLC, New York City (Robert M. Wolf of Counsel), for Defendant–Appellant. Gustave J. Detraglia, Jr., Utica, for Plaintiffs–Respondents.
Finazzo Cossolini O'Leary Meola & Hager, LLC, New York City (Robert M. Wolf of Counsel), for Defendant–Appellant.
Gustave J. Detraglia, Jr., Utica, for Plaintiffs–Respondents.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.
MEMORANDUM:Plaintiffs commenced this action seeking a determination that defendant is obligated to provide coverage for damages to their home pursuant to an insurance policy issued by defendant to them. Plaintiffs' home was allegedly damaged when four exterior posts supporting a deck, which was structurally integrated into the second floor of the home, were damaged by hidden decay and rot. We conclude that Supreme Court erred in granting plaintiffs' motion for summary judgment, and instead should have granted defendant's motion for summary judgment dismissing the complaint.
Insofar as relevant, the policy excludes coverage for "wear and tear," "wet or dry rot," and "settling" or "cracking" of, inter alia, foundations, patios, walls, floors, roofs, and ceilings. The policy provides coverage for "collapse" of a building or part of a building. "Collapse" is defined in the policy as "an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose." The policy further provides that "[a] building or any part of a building that is in danger of falling down or caving in is not considered to be in a state of collapse" and that "[a] building or any part of a building that is standing is not considered to be in a state of collapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion."
Here, the record establishes that plaintiffs' home was standing when they submitted their claim to defendant, and there had been no "abrupt falling down or caving in." Thus, based on the unambiguous language of the policy, there was no "collapse" of plaintiffs' home (see Viscosi v. Preferred Mut. Ins. Co., 87 A.D.3d 1307, 1308, 930 N.Y.S.2d 165, lv. denied 18 N.Y.3d 802, 2011 WL 6223144 ; Rector St. Food Enters., Ltd. v. Fire & Cas. Ins. Co. of Conn., 35 A.D.3d 177, 178, 827 N.Y.S.2d 18 ). Rather, the support posts were subject to rot and deterioration over time and, even assuming arguendo, as plaintiffs contend, that the home was in a state of "imminent collapse," we conclude that there is no coverage (see Rector St. Food Enters., Ltd., 35 A.D.3d at 178, 827 N.Y.S.2d 18 ). We note that plaintiffs erroneously rely on the line of cases finding a "collapse" in situations where the policy failed to define "collapse" (see e.g. Wangerin v. New York Cent. Mut. Fire Ins. Co., 111 A.D.3d 991, 974 N.Y.S.2d 631 ; Royal Indem. Co. v. Grunberg, 155 A.D.2d 187, 553 N.Y.S.2d 527 ). In light of our determination, we do not address defendant's remaining contentions.
It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, plaintiffs' motion is denied, defendant's motion is granted, and the complaint is dismissed.