| Viscosi v Preferred Mut. Ins. Co. |
| 2011 NY Slip Op 06702 [87 AD3d 1307] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| John Viscosi et al., Respondents, v Preferred Mutual InsuranceCompany, Appellant. |
—[*1] Gustave J. DeTraglia, Jr., Utica, for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered September 2, 2010. The order, insofar as appealed from, denied the motion of defendantfor summary judgment dismissing the complaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, defendant's motion is granted and the complaint is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for an alleged breach of aninsurance policy issued by defendant. We note at the outset that, although defendant purports toappeal from "each and every part" of the order, it is not aggrieved by that part of the orderdenying plaintiffs' cross motion for summary judgment on the complaint and thus may not appealtherefrom (see CPLR 5511). We agree with defendant that Supreme Court erred indenying its motion for summary judgment dismissing the complaint (see generallyGovernment Empls. Ins. Co. v Kligler, 42 NY2d 863, 864 [1977]), and we therefore reversethe order insofar as appealed from.
The policy excluded coverage for loss "to the inside of a building or the property contained ina building caused by rain, snow, [or] sleet . . . unless the direct force of wind or haildamages the building causing an opening in a roof or wall and the rain, snow, [or] sleet. . . enters through [that] opening." In support of its motion, defendant submitted thedeposition testimony of plaintiff John Viscosi in which he testified that the damage at issue wascaused by water "that had seeped" into the ceiling of several rooms in the covered premises, andhe specifically denied that either wind or hail created an opening in the building. We also agreewith defendant that the ceiling did not collapse within the meaning of the policy, whichspecifically states that "any part of a building that is standing is not considered to be in a state ofcollapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling,shrinkage or expansion." Here, the record establishes that the ceiling did not "abrubt[ly] fall[ ]down or cav[e] in" but, rather, the ceiling was noticeably bowed for several months beforeplaintiffs had it demolished. In light of our determination, defendant's remaining contentions are[*2]academic. Present—Centra, J.P., Peradotto, Carni,Green and Gorski, JJ.