| K.J.D.E. Corp. v Hartford Fire Ins. Co. |
| 2011 NY Slip Op 08419 [89 AD3d 1531] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| K.J.D.E. Corp., Doing Business as K.J. Electric, et al., Respondents, vThe Hartford Fire Insurance Company, Appellant, et al., Defendant. (Appeal No.1.) |
—[*1] Richard P. Plochocki, Syracuse, for plaintiffs-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (James P.Murphy, J.), entered July 16, 2010. The judgment, inter alia, granted the cross motion of plaintiffs forpartial summary judgment.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law withoutcosts, the cross motion is denied and the declaration is vacated.
Memorandum: In appeal No. 1, The Hartford Fire Insurance Company (defendant) appeals from ajudgment granting plaintiffs' cross motion for partial summary judgment on the fourth cause of action, forbreach of the insurance policy in question, and the fifth cause of action, seeking a declaration thatplaintiffs' losses are covered losses under the insurance policy in question. In appeal No. 2, defendantappeals from an order that, inter alia, denied those parts of its motion for summary judgment dismissingthe fourth and fifth causes of action. We note that, although defendant purports to appeal "from eachand every part" of the order in appeal No. 2, it is not aggrieved by those parts of the order granting itsmotion in part and thus may not appeal therefrom (see CPLR 5511). We reverse the judgmentin appeal No. 1 and the order insofar as appealed from in appeal No. 2.
Plaintiffs K.J.D.E Corp., doing business as K.J. Electric, and the Rita Jacobs Trust, by KennethJacobs, Trustee, were the lessee and owner, respectively, of a parcel of property located inBinghamton, New York. During a storm in 2006, almost seven inches of rain fell in Binghamton, andthe property flooded. Shortly after the storm, plaintiffs submitted a claim to defendant for damagescaused by the flooding. Defendant investigated the claim and concluded that the flooding was caused bya creek that overflowed as the result of heavy rains and road culverts that were blocked by a build upof debris. Defendant sent plaintiffs a letter disclaiming coverage because the damage to the propertywas caused by a flood and thus the damage fell [*2]within the floodexclusion clause of the policy.
Plaintiffs commenced this action seeking, inter alia, damages based on defendant's alleged breachof the insurance policy and a declaration that their losses were covered under the policy. Addressingfirst appeal No. 2, we conclude that defendant met its initial burden on the motion by establishing thatthe damage to plaintiffs' property was caused by flooding (see B&W Heat Treating Co., Inc. v Hartford Fire Ins. Co., 23 AD3d1102 [2005]; Casey v General Acc. Ins. Co., 178 AD2d 1001, 1002 [1991]). "Flood" isdefined in the policy, in relevant part, as "[s]urface water . . . or overflow of any natural orman[-]made body of water from its boundaries." Here, plaintiffs' assertion that the source of the waterthat caused the flooding was a clogged culvert "does not raise the requisite issue of fact to defeat the. . . motion" (B&W Heat Treating Co., Inc., 23 AD3d at 1103). We rejectplaintiffs' contention that the terms of the flood exclusion clause contained in the policy are ambiguous(see generally Rhinebeck Bicycle Shop v Sterling Ins. Co., 151 AD2d 122, 126 [1989]). Wealso reject plaintiffs' contention that defendant failed to submit proof in admissible form to support itsmotion. Even assuming, arguendo, that the documents submitted by defendant in support of the motiondid not qualify as business records pursuant to CPLR 4518 (a), we conclude that the record containssufficient evidence establishing that the cause of the flooding was heavy rain over a two-day period inthe Binghamton area and that the property was damaged by the overflow of surface water.
In light of our determination with respect to appeal No. 2, we conclude in appeal No. 1 thatSupreme Court erred in granting plaintiffs' cross motion for partial summary judgment on the fourth andfifth causes of action and in declaring that plaintiffs' losses are covered losses under the insurancepolicy. Present—Scudder, P.J., Smith, Sconiers, Gorski and Martoche, JJ.