| Junius Dev., Inc. v New York Mar. & Gen. Ins. Co. |
| 2008 NY Slip Op 01116 [48 AD3d 426] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Junius Development, Inc., Appellant, v New York Marineand General Insurance Co., Defendant and Third-Party Plaintiff-Respondent. M. RondonConstruction Corp., Also Known as M. Rondon Plumbing and Heating, Third-PartyDefendant-Appellant. |
—[*1] McMahon, Martine & Gallagher, LLP, New York, N.Y. (Patrick W. Brophy and TimothyGallagher of counsel), for defendant third-party plaintiff-respondent.
In an action to recover damages for breach of an insurance contract and a third-partysubrogation action, the plaintiff and the third-party defendant appeal, as limited by their brief,from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated July 17,2007, as granted the motion of the defendant third-party plaintiff for summary judgmentdismissing the complaint and denied that branch of their cross motion which was for summaryjudgment on the issue of liability.
Ordered that the appeal by the third-party defendant from so much of the order as granted themotion of the defendant third-party plaintiff for summary judgment dismissing the complaint isdismissed, as it is not aggrieved by that portion of the order; and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof granting themotion of the defendant third-party plaintiff for summary judgment dismissing the complaint andsubstituting therefor a provision denying that motion; as so modified, the order is affirmedinsofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff, Junius Development Co., Inc. (hereinafter Junius), allegedly sustained waterdamage to its insured building after a subcontractor emptied the contents of a rooftop water tankinto [*2]a drainpipe. It is undisputed that a trap inside the pipewas clogged with construction debris. Thus, when the rooftop tank was emptied, the pressurecreated by the column of water above the obstruction caused the drainpipe to fail inside thepremises, releasing quantities of water into the mezzanine, basement, and/or sub-basement areasof the building.
Junius submitted the claim to its carrier, the defendant New York Marine and GeneralInsurance Co. (hereinafter NYMAGIC). After NYMAGIC denied coverage, Junius commencedthis action, and NYMAGIC commenced a third-party subrogation action, against Junius'plumbing subcontractor, the third-party defendant M. Rondon Construction Corp., also known asM. Rondon Plumbing and Heating (hereinafter Rondon). NYMAGIC moved for summaryjudgment dismissing the complaint, and Junius and Rondon cross-moved, inter alia, for summaryjudgment on the issue of liability. Regarding NYMAGIC's motion for summary judgmentdismissing the complaint, we note that the insurer relies primarily on a policy provisionspecifically excluding any "loss or damage caused directly or indirectly by . . .[w]ater that backs up or overflows from a . . . drain."
In order for a policy exclusion to be enforced, the language must be clear and unmistakable,and the carrier must establish that the exclusion applies in the particular case and is subject to noother reasonable interpretation (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311[1984]; Essex Ins. Co. v Pingley, 41AD3d 774, 776 [2007]). On this record, NYMAGIC has failed, prima facie, to satisfy thatburden (see Ayotte v Gervasio, 81 NY2d 1062 [1993]). Indeed, to the ordinary businessperson, the loss in this case was most immediately and visibly occasioned by the separation ofthe drain pipe (cf. Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008,1010-1011 [1992]), which resulted in water from the rooftop tank flowing directly into thebasement area of the building. Under these circumstances, the above exclusion has no application(see World Fire & Mar. Ins. Co. v Carolina Mills Distrib. Co., 169 F2d 826 [8th Cir1948]; Thompson v Genis Bldg. Corp., 182 Ind App 200, 394 NE2d 242 [1979]).Therefore, the Supreme Court erred in granting NYMAGIC's motion for summary judgmentdismissing the complaint.
Nevertheless, Junius was not entitled to summary judgment on the issue of liability, as therecord presents unresolved triable issues of fact regarding the applicability of another policyexclusion relied upon by NYMAGIC. Fisher, J.P., Lifson, Covello and McCarthy, JJ., concur.