| Lattimore Rd. Surgicenter, Inc. v Merchants Group, Inc. |
| 2010 NY Slip Op 02189 [71 AD3d 1379] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| Lattimore Road Surgicenter, Inc., Appellant, v Merchants Group,Inc., et al., Respondents. |
—[*1] Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Marco Cercone of counsel),for defendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.),entered May 21, 2009 in a breach of contract action. The order, among other things, deniedplaintiff's motion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking insurance coverage resulting fromthe rupture of a water main near an ambulatory surgical center operated by plaintiff. Theruptured water main, which was located in the basement of a professional building, in turnruptured a portion of a nearby sewer lateral that carried wastewater from the surgical center. Theremaining portion of the sewer lateral served as a conduit for water that escaped from the watermain and entered the surgical center through one of the surgical center's drains. That watercaused extensive damage to the surgical center.
Defendant Merchants Mutual Insurance Company (Merchants) had issued commercialproperty insurance to plaintiff that was in effect at the time of the loss. The policy contained anexclusion for damage caused by "water," however, and expressly provided that Merchants "willnot pay for loss or damage caused directly or indirectly" by "water" that, inter alia, "backs up oroverflows from a sewer, drain or sump." An endorsement to the policy amended the exclusion toprovide a special extension of up to $5,000 for damage to property "by water that backs up oroverflows from a sewer, drain or sump."
Following the loss, Merchants, through defendant Merchants Insurance Group (MIG), paidplaintiff the sum of $5,000 in accordance with the special extension endorsement, as well as anadditional $5,327.05 in accordance with certain extra expense coverage provided by the policy.Merchants, again through MIG, otherwise disclaimed coverage for the loss based on, [*2]inter alia, the water exclusion, whereupon plaintiff commenced thisbreach of contract action seeking a money judgment. According to plaintiff, defendants breachedtheir obligation to provide coverage for losses caused by the broken water main to the full limitsof the policy. Supreme Court denied plaintiff's motion for summary judgment and granteddefendants' cross motion for summary judgment dismissing the complaint. We affirm.
" 'Where[, as here,] the provisions of an insurance contract are clear and unambiguous, theymust be enforced as written' " (Oot v Home Ins. Co. of Ind., 244 AD2d 62, 66 [1998]).Affording the unambiguous terms in the instant insurance contract their plain and ordinarymeaning (see White v Continental Cas.Co., 9 NY3d 264, 267 [2007]), we conclude that defendants established theirentitlement to judgment as a matter of law by establishing that the policy does not providecoverage for the loss herein (see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]). Plaintiff's contention that the water exclusion is inapplicable because itexcludes only sewer backups or overflows is misplaced. Pursuant to the terms of the exclusion,there plainly is no coverage for loss stemming from "water that backs up or overflows from asewer," irrespective of any other concurrent or subsequent contributing cause or event.Present—Scudder, P.J., Centra, Fahey and Green, JJ.