| Nash v Baumblit Constr. Corp. |
| 2010 NY Slip Op 03421 [72 AD3d 1037] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Mark Nash et al., Respondents, v Baumblit ConstructionCorporation, Appellant-Respondent, and Admiral Insurance Company, Appellant, et al.,Defendants. |
—[*1] Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (Michael G. Walker ofcounsel), for appellant. Brad S. Maistrow, P.C., New York, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of contract, the defendant BaumblitConstruction Corporation appeals from so much of an order of the Supreme Court, NassauCounty (Parga, J.), entered January 12, 2009, as granted that branch of the plaintiffs' motionwhich was for summary judgment on the issue of liability against it, and the defendant AdmiralInsurance Company separately appeals from so much of the same order as denied its motion forsummary judgment dismissing the cross claim asserted against it by the defendant BaumblitConstruction Corporation.
Ordered that the order is reversed insofar as appealed from by the defendant AdmiralInsurance Company, on the law, and the motion of the defendant Admiral Insurance Companyfor summary judgment dismissing the cross claim asserted against it by the defendant BaumblitConstruction Corporation is granted; and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant BaumblitConstruction Corporation; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs and the defendant AdmiralInsurance Company, payable by the defendant Baumblit Construction Corporation.
The plaintiffs hired the defendant Baumblit Construction Corporation (hereinafter BCC) inNovember 2003 to extensively renovate a house they had recently purchased. Soon after theplaintiffs moved into the renovated house in June 2004, they encountered numerous problems,including water leaks, bouncing and uneven floors, water-stained ceilings, cracked grout in thebathrooms, and falling roof tiles. Among other things, the plaintiffs hired a second contractor,Expressions Custom Design (hereinafter ECD). ECD spent approximately one year extensivelyrenovating the house a second time.[*2]
The plaintiffs brought this action against, among others,BCC and BCC's insurer, Admiral Insurance Company (hereinafter Admiral), asserting causes ofaction, inter alia, to recover damages for breach of contract. BCC, among other things, asserted across claim against Admiral, seeking a declaration that Admiral was required to defend andindemnify BCC in this action.
Before the completion of discovery, the plaintiffs moved, inter alia, for summary judgmenton the issue of liability against BCC. Admiral also moved for summary judgment dismissing thecross claim asserted against it by BCC, contending that the insurance policy it issued to BCCspecifically excluded coverage for BCC's defective workmanship, and thus it had no duty todefend and indemnify BCC in this action. The Supreme Court, in pertinent part, granted thatbranch of the plaintiffs' motion which was for summary judgment on the issue of liability againstBCC and denied Admiral's motion for summary judgment dismissing the cross claim assertedagainst it by BCC. Although the plaintiffs voluntarily discontinued their causes of action against,among others, Admiral, because of BCC's cross claim, Admiral remains in the action. Wemodify.
The plaintiffs established their prima facie entitlement to judgment as a matter of law on theissue of liability against BCC by setting forth evidence that BCC's work product was defective.Specifically, the affidavit of Noel Atieh, a licensed general contractor and president of ECD,averred that much of BCC's work did not comport with the building plans and did not meetbuilding requirements for the Town of Hempstead, and was so defective that ECD had toreconstruct nearly the entire house. Atieh's affidavit provided specific details of numerousstructural defects in the house resulting from BCC's work, including a foundation addition thatwent down 23 inches instead of the required 36 inches, improperly installed and undersizedbeams and joists throughout the house, improperly installed and framed headers throughout thehouse that caused sagging ceilings and leaks, an uneven and improperly installed subfloor on thesecond floor that caused the shower pan in the master bathroom and the tiles in both bathroomsto crack, which in turn caused water to leak into the first-floor kitchen. Atieh also noted thatBCC had improperly installed a sewer waste line running to the kitchen, causing it to leak, andhad improperly installed a gas line in the kitchen without protection sleeves, which substantiallyincreased the risk of gas leaks, fires, and explosions. Atieh also noted that ECD had to demolishthe third floor bathroom because the shower pan and plumbing were improperly installed andleaked, which caused mold and mildew to develop in the walls. Accordingly, the plaintiffs mettheir initial burden of establishing their entitlement to judgment as a matter of law on the issue ofliability against BCC (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
In opposition, BCC failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d at 324; cf. XLICorp. v Battle Constr. Co., Inc., 50 AD3d 1474 [2008]). The report of Brian Flynn, anengineer, was insufficient, as it demonstrated that he largely ignored any of the structuralproblems identified by Atieh, and primarily reported only on issues he could ascertain by avisual inspection. To the extent that Flynn did examine structural defects, it is notable that hedescribed the sliding door in the first floor den as difficult to open and that the living roomceiling had a two-foot seam and was bowed at two locations. The affidavit of Vladimir Baumblit,the president of BCC, also failed to raise a triable issue of fact since it contained only conclusorydenials of the structural defects identified by the plaintiffs, which are insufficient to defeat amotion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]; J.F.J. Fuel v Ortiz, 234 AD2d 424 [1996]; Spancrete Northeast v EliteAssoc., 184 AD2d 562 [1992]).
Further, in its opposition, BCC failed to demonstrate that the plaintiffs' motion waspremature on the ground that discovery may lead to relevant evidence (see CPLR 3212[f]; Wyllie v District Attorney ofCounty of Kings, 2 AD3d 714, 717 [2003]). BCC failed to show that facts essential tojustify opposition may exist upon further discovery (see Panasuk v Viola Park Realty, LLC, 41 AD3d 804, 805 [2007];Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615 [1999]), and failedto specify what facts, necessary to oppose the motion, were uniquely in the plaintiffs' possession(see Kraeling v Leading Edge Elec., 2 AD3d 789, 790-791 [2003]). Accordingly, theSupreme Court properly granted that branch of the plaintiffs' motion which was for summaryjudgment on the issue of liability against BCC.
However, the Supreme Court erred in denying Admiral's motion for summary judgmentdismissing the cross claim asserted against it by BCC. Admiral established, prima facie, thatexclusion [*3]2 (j) (5), which applies to damage caused by BCCor one of its subcontractors to BCC's work product and exclusion 2 (j) (6), which applies to workthat had to be restored, repaired, or replaced because it was incorrectly performed, excludeBCC's claim from coverage (see KayBee Bldrs., Inc. v Merchant's Mut. Ins. Co., 10 AD3d 631 [2004]; Poulos v UnitedStates Fid. & Guar. Co., 227 AD2d 539 [1996]; George A. Fuller Co. v United StatesFid. & Guar. Co., 200 AD2d 255, 260 [1994]). In opposition, BCC failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324). Accordingly, the SupremeCourt should have granted Admiral's motion for summary judgment dismissing the cross claimasserted against it by BCC. Fisher, J.P., Dillon, Dickerson and Belen, JJ., concur. [PriorCase History: 2009 NY Slip Op 30072(U).]