| Bentoria Holdings, Inc. v Travelers Indem. Co. |
| 2011 NY Slip Op 04400 [84 AD3d 1135] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Bentoria Holdings, Inc., Respondent, v TravelersIndemnity Company, Appellant, et al., Defendants. |
—[*1] Lerner, Arnold & Winston LLP (John V. Decolator, Garden City, N.Y., of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant TravelersIndemnity Company appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Vaughan, J.), dated September 29, 2010, as denied that branch of itsmotion which was for summary judgment dismissing the complaint insofar as asserted against itand, in effect, denied an alternate branch of its motion which was to sever the action insofar asasserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
In April 2008, the defendant Travelers Indemnity Company (hereinafter Travelers) issued apolicy of insurance to the plaintiff covering a building owned by the plaintiff at 521 Court Streetin Brooklyn. The policy included an earth movement exclusion, pursuant to which loss ordamage caused by earth movements such as earthquakes, landslides, and mine subsidence, andby "[e]arth sinking, . . . rising or shifting," "whether naturally occurring or due toman made or other artificial causes," would not be covered under the policy. The plaintiff'sbuilding allegedly sustained damage as a result of excavation on an adjacent lot. Travelersdisclaimed coverage pursuant to the earth movement exclusion. The plaintiff commenced thisaction, and named, among others, Travelers as a defendant, alleging, inter alia, that Travelersimproperly disclaimed coverage. After joining issue, Travelers moved, among other things, forsummary judgment dismissing the complaint or, in the alternative, to sever the action insofar asasserted against it. The Supreme Court denied those branches of Travelers' motion. We affirm.
The Supreme Court properly denied that branch of Travelers' motion which was for summaryjudgment dismissing the complaint insofar as asserted against it. "Generally, where an insurerwishes to exclude certain coverage from its policy obligations, it must do so in clear andunmistakable language" (Lee v State Farm Fire & Cas. Co., 32 AD3d 902, 903 [2006][internal quotation marks omitted]; see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304,311 [1984]). "Such exclusions or exceptions from policy coverage must be specific and clear inorder to be enforceable, and they are [*2]not to be extended byinterpretation or implication, but are to be accorded a strict and narrow construction" (Lee vState Farm Fire & Cas. Co., 32 AD3d at 903 [internal quotation marks omitted]). "Thus theinsurance company bears the burden of establishing that the exclusions apply in a particular caseand that they are subject to no other reasonable interpretation" (id. at 903-904 [internalquotation marks omitted]; see Seaboard Sur. Co. v Gillette Co., 64 NY2d at 311). "Theburden is a heavy one, and if the language is doubtful or uncertain in its meaning, any ambiguitywill be construed in favor of the insured and against the insurer" (Lee v State Farm Fire &Cas. Co., 32 AD3d at 904; see Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 13AD3d 599, 600 [2004]).
Here, Travelers failed to establish its prima facie entitlement to judgment as a matter of lawby meeting the heavy burden of demonstrating that the earth movement exclusion clearly andunambiguously applied to the loss at issue in this case (see Pioneer Tower Owners Assn. vState Farm Fire & Cas. Co., 12 NY3d 302, 306-307 [2009]; Lee v State Farm Fire & Cas.Co., 32 AD3d at 904). Excavation was not expressly set forth in the exclusion, while other,less common causes of earth movement were (see Pioneer Tower Owners Assn. v State FarmFire & Cas. Co., 12 NY3d at 308). Travelers failed to establish, prima facie, that the facts ofthis case, which allegedly involves the excavation of earth from a lot adjacent to the plaintiff'sbuilding, fall squarely within the language of the exclusion, which expressly defines earthmovement as "[e]arth sinking, . . . rising or shifting" (see Lee v State Farm Fire& Cas. Co., 32 AD3d at 904). Thus, notwithstanding the fact that the exclusion here refers toearth movement caused by "man made" or "artificial" causes, we conclude that Travelers failed todemonstrate, prima facie, that the express terms of the exclusion clearly and unambiguouslyestablish that the loss at issue here was not covered by the policy. Accordingly, the SupremeCourt properly denied that branch of Travelers' motion which was for summary judgmentdismissing the complaint insofar as asserted against it.
The Supreme Court providently exercised its discretion in denying the alternate branch ofTravelers' motion which was to sever the action insofar as asserted against it. "The determinationto grant or deny a request for a severance pursuant to CPLR 603 is a matter of judicial discretionwhich should not be disturbed on appeal absent a showing of prejudice to a substantial right ofthe party seeking the severance" (Naylor v Knoll Farms of Suffolk County, Inc., 31 AD3d726, 727 [2006]). Here, there are common factual issues involved in the claims against Travelersand the other defendants, and the interests of judicial economy and consistency will be served byhaving a single trial (see Ingoglia v Leshaj, 1 AD3d 482, 485 [2003]). Additionally,Travelers failed to demonstrate that a single trial would result in prejudice to a substantial right(see Quiroz v Beitia, 68 AD3d 957, 960-961 [2009]). Skelos, J.P., Dickerson, Hall andSgroi, JJ., concur.