| Hopper v McCollum |
| 2009 NY Slip Op 06315 [65 AD3d 669] |
| August 25, 2009 |
| Appellate Division, Second Department |
| David Hopper et al., Appellants, v Susan McCollum,Respondent. |
—[*1] Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Robert Gironda ofcounsel), for respondent.
In an action to recover damages for injury to property, the plaintiffs appeal from an order ofthe Supreme Court, Putnam County (O'Rourke, J.), dated July 14, 2008, which, in effect,converted the defendant's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint intoone for summary judgment dismissing the complaint, and granted the motion.
Ordered that the order is modified, on the law, by deleting the provision thereof granting theconverted motion for summary judgment dismissing the complaint and substituting therefor aprovision denying the converted motion; as so modified, the order is affirmed, with costs to theappellants.
On January 18, 2006, the plaintiffs' garage was damaged when portions of an allegedlydecayed and fractured tree located on the defendant's adjacent property fell onto it. The plaintiffsmade a claim under their homeowners' insurance policy and were paid the policy limit, definedas the actual cash value of the loss under the policy provision entitled "Other StructuresProtection." While the plaintiffs could have sought additional reimbursement from theirinsurance carrier if they submitted proof that they repaired, rebuilt, or replaced the garage within180 days of payment, they did not do so. In February 2007 the plaintiffs commenced this actionagainst the defendant. Approximately one month later, the defendant interposed a verifiedanswer. In June 2008 the defendant moved to dismiss the complaint pursuant to CPLR 3211 (a)(5) on the ground that the plaintiffs had received payment through their homeowners' insurancepolicy and were not entitled to any additional recovery from her. The Supreme Court, in effect,converted the motion to dismiss into one for summary judgment dismissing the complaint andgranted the motion. We modify.
The Supreme Court properly, in effect, converted the motion to dismiss to one for summaryjudgment since it was made after issue had been joined (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595 [2008]; Schultz v Estate of Sloan, 20 AD3d520 [2005]; Tufail v Hionas, 156 AD2d 670, 671 [1989]), and the parties clearlycharted a summary judgment course by laying bare their proof and submitting documentaryevidence and evidentiary affidavits (seeMyers v BMR Bldg. Inspections, Inc., 29 AD3d 546 [2006]; Jamison v Jamison, 18 AD3d 710,711 [2005]). However, upon such conversion, the Supreme Court [*2]erred in granting the defendant's converted motion for summaryjudgment dismissing the complaint. Contrary to the defendant's contention, the plaintiffs are notprecluded from maintaining this action against the defendant simply because they receivedpayment from their insurance carrier (see generally Fisher v Qualico Contr. Corp., 98NY2d 534, 538 [2002]; Spectra AudioResearch, Inc. v Chon, 62 AD3d 561 [2009]; Corsa v Pacific Indem. Co., 52 AD3d 450, 451 [2008];Winkelmann v Hockins, 204 AD2d 623, 623-624 [1994]). If the trier of facts in thismatter finds the defendant liable and awards damages to the plaintiffs, then the plaintiffs' receiptof the insurance payment may be relevant as a possible setoff against the damages award (seeCPLR 4545 [c]; Fisher v Qualico Contr. Corp., 98 NY2d at 539-540).
The remaining contentions either are without merit, are improperly raised for the first timeon appeal, or have been rendered academic in light of our determination. Rivera, J.P., Dillon,Balkin and Austin, JJ., concur.