| Gravino v Allstate Ins. Co. |
| 2010 NY Slip Op 03991 [73 AD3d 1447] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| Richard Gravino, Respondent, v Allstate Insurance Company,Appellant. |
—[*1] Law Offices of Michael Pilarz, Buffalo (Michael Pilarz of counsel), forplaintiff-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (DonnaM. Siwek, J.), entered August 18, 2009 in a breach of contract action. The order and judgmentdenied defendant's motion for summary judgment and granted plaintiff's cross motion for partialsummary judgment.
It is hereby ordered that the order and judgment so appealed from is unanimously reversedon the law without costs, the motion is granted, the complaint is dismissed, the cross motion isdenied and the declaration is vacated.
Memorandum: Plaintiff commenced this action against his insurer seeking coverage fordamage to an in-ground swimming pool pursuant to the terms of his homeowners' insurancepolicy. Plaintiff had drained the pool in June in order to paint it, but the painting was delayed dueto rain. On the fifth day after draining the pool, plaintiff noticed that one end of the pool hadlifted out of the ground and that the concrete around the pool had been damaged. Defendantdisclaimed coverage for the loss based on, inter alia, a provision in the policy excluding damageto a swimming pool caused by "pressure or weight of water."
We conclude that Supreme Court erred in granting plaintiff's cross motion for partialsummary judgment "declaring" that the policy covered the damage to the swimming pool.Indeed, we vacate the declaration inasmuch as this is an action for breach of contract and is not adeclaratory judgment action (seeNiagara Falls Water Bd. v City of Niagara Falls, 64 AD3d 1142, 1144 [2009]). Weconclude that the court instead should have granted defendant's motion for summary judgmentdismissing the complaint. Defendant met its initial burden on its motion by establishing as amatter of law that the exclusion for damages caused by "pressure or weight of water" uponwhich defendant relied unambiguously applied to plaintiff's loss, and plaintiff failed to raise atriable issue of fact in opposition (see generally Zuckerman v City of New York, 49NY2d 557, 562 [1980]). The experts for each party agreed that the pool had lifted from theground because of the hydrostatic pressure in the soil surrounding the pool. The fact thatplaintiff's expert stated in his affidavit that the damage would not have occurred if plaintiff hadnot emptied the pool does not remove the loss from the policy exclusion. The policy expresslyprovides that, where the damage has two or more causes, the loss is not covered if the"predominant cause(s) of [*2]loss is (are) excluded" under thepolicy. Here, "[t]o determine causation, [we must] look[ ] to the 'efficient or dominant cause ofthe loss', not the event that 'merely set the stage for that later event' " (Kosich v MetropolitanProp. & Cas. Ins. Co., 214 AD2d 992 [1995], lv denied 86 NY2d 707 [1995]). Here,although the drainage of the pool may have been a precondition to the lifting of the pool from theground, we conclude that defendant established as a matter of law that the groundwater pressurewas the "predominant cause" of the loss, thus rendering applicable the policy exclusion fordamages caused by "pressure or weight of water" (see Jahier v Liberty Mut. Group, 64 AD3d 683, 685 [2009]).Present—Scudder, P.J., Smith, Peradotto, Lindley and Sconiers, JJ.