| Fontanelli v Hanover Ins. Co. |
| 2008 NY Slip Op 01105 [48 AD3d 413] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Bridget Fontanelli, Respondent-Appellant, v HanoverInsurance Company et al., Appellants-Respondents. |
—[*1] Andrew S. Targum, P.C., New York, N.Y. (Louis A. Badolato and Brian J. Isaac of counsel),for respondent-appellant.
In an action, inter alia, to recover damages for breach of an insurance contract, the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County(Bunyan, J.), dated September 27, 2006, as denied that branch of their cross motion which wasfor summary judgment dismissing the complaint, and the plaintiff cross-appeals from so much ofthe same order as denied her motion for summary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against the defendants Massachusetts Bay Insurance Company andAllmerica Financial Alliance Insurance Company, and substituting therefor a provision grantingthat branch of the cross motion; as so modified, the order is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The record shows that the defendant Hanover Insurance Company (hereinafter Hanover), andnot the defendants Massachusetts Bay Insurance Company (hereinafter Massachusetts Bay) andAllmerica Financial Alliance Insurance Company (hereinafter Allmerica Financial Alliance),issued the subject homeowner's insurance policy. Thus, the Supreme Court should have awardedMassachusetts Bay and Allmerica Financial Alliance summary judgment dismissing thecomplaint [*2]insofar as asserted against them (cf. Binyan Shel Chessed, Inc. v GoldbergerIns. Brokerage, Inc., 18 AD3d 590, 592 [2005]).
The Supreme Court correctly declined to award Hanover summary judgment dismissing thecomplaint insofar as asserted against it. On the cross motion, Hanover demonstrated itsentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]), by establishing, prima facie, that the plaintiff's loss was not covered by theinsurance policy. In this regard, Hanover provided evidence establishing that the loss resultedfrom a condition caused by the poor design and construction of the house, and not a "collapse"(cf. Catucci v Greenwich Ins. Co.,37 AD3d 513, 515 [2007]). In opposition, however, the plaintiff raised a triable issue of factas to whether the loss was covered under the policy (see Alvarez v Prospect Hosp., 68NY2d at 324), by providing evidence establishing that there had indeed been a "collapse," andthat the collapse had been caused by a "hidden" condition.
The Supreme Court also correctly declined to award the plaintiff summary judgment againstHanover on the issue of liability. In opposition to the plaintiff's prima facie showing that the losswas covered under the insurance policy, Hanover raised a triable issue of fact (id.).
The parties' remaining contentions are without merit. Mastro, J.P., Dillon, Covello andAngiolillo, JJ., concur.