| L&D Serv. Sta., Inc. v Utica First Ins. Co. |
| 2013 NY Slip Op 01070 [103 AD3d 782] |
| February 20, 2013 |
| Appellate Division, Second Department |
| L&D Service Station, Inc., Respondent, v UticaFirst Insurance Company, Appellant, et al., Defendant. |
—[*1] Brown & Altman, LLP, Melville, N.Y. (David N. Altman of counsel), forrespondent.
In an action for a judgment declaring that the defendant Utica First InsuranceCompany is obligated to provide insurance coverage to the plaintiff, the defendant UticaFirst Insurance Company appeals from so much of an order of the Supreme Court,Nassau County (Feinman, J.), dated September 28, 2011, as denied that branch of itsmotion which was for summary judgment declaring that it has no obligation to provideinsurance coverage to the plaintiff.
Ordered that the order is affirmed insofar as appealed from, with costs.
In a dispute over insurance coverage, the insured bears the initial burden ofestablishing that the loss claimed falls within the scope of the policy (see Bread & Butter, LLC v CertainUnderwriters at Lloyd's, London, 78 AD3d 1099, 1101 [2010]). "Once coverageis established, the insurer bears the burden of proving that an exclusion applies"(id. at 1101 [internal quotation marks omitted]).
As the party moving for summary judgment, the appellant had the burden ofestablishing its prima facie entitlement to judgment as a matter of law (see id.).As a general rule, a party does not carry its burden in moving for summary judgment bypointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit ofits claim or defense (see Dalton v Educational Testing Serv., 294 AD2d 462, 463[2002]).
" 'As with the construction of contracts generally, "unambiguous provisions of aninsurance contract must be given their plain and ordinary meaning, and the interpretationof such provisions is a question of law for the court" ' " (Richner Communications, Inc. vTower Ins. Co. of N.Y., 72 AD3d 670, 671 [2010], quoting Vigilant Ins. Co. v Bear StearnsCos., Inc., 10 NY3d 170, 177 [2008]; see White v Continental Cas. Co., 9 NY3d 264, 267[2007]). "[I]n construing an endorsement to an insurance policy, the endorsement and thepolicy must be read together, and the words of the policy remain in full force and effectexcept as altered by the words of the endorsement . . . An insurancecontract should not be read so that some provisions are rendered meaningless" (Shahv Cambridge Mut. Fire Ins. Co., 304 AD2d 815, 816 [2003] [internal quotationmarks omitted]; see Richner Communications, Inc. v Tower Ins. Co. of N.Y., 72AD3d at 671).
Here, the subject insurance policy provided that the appellant would pay "to extract[*2]pollutants from land or water at the describedpremises if the discharge, dispersal, seepage, migration, release, or escape of thepollutants [was] caused by a peril [that had been] added to coverage." The "SystemsBreakdown" endorsement of the policy stated that coverage would be provided for theadditional peril of "Mechanical breakdown, including rupture or bursting caused bycentrifugal force." The plaintiff claimed coverage under this endorsement following therelease of gasoline at the insured premises.
Contrary to the plaintiff's contention, the language of the policy requires a showingnot only that there was a leak in the underground storage tank, but also that the leak wascaused by a mechanical breakdown. Nevertheless, the appellant failed to carry its burdenof demonstrating, prima facie, its entitlement to judgment as a matter of law. The expertevidence submitted by the appellant in support of its motion was conclusory and failed toshow that the leak was not caused by a mechanical breakdown. Viewing the facts in thelight most favorable to the plaintiff, the appellant failed to make a prima facie showingsufficient to shift the burden to the plaintiff (see Bread & Butter, LLC v CertainUnderwriters at Lloyd's, London, 78 AD3d at 1101; Hudson v Allstate Ins. Co., 25AD3d 654 [2006]; see also City of Burlington v Indemnity Ins. Co. of N.Am., 332 F3d 38, 41 [2d Cir 2003]). Accordingly, the Supreme Court properlydenied that branch of the appellant's motion which was for summary judgment declaringthat it has no obligation to provide insurance coverage to the plaintiff.
The Supreme Court did not determine that branch of the appellant's motion whichwas, in effect, in the alternative, for summary judgment determining that the amount ofcoverage available to the plaintiff pursuant to the subject insurance policy is limited to$100,000. Accordingly, we do not address the appellant's contentions regarding thatissue, as that branch of the appellant's motion remains pending and undecided (see Cordova v 360 Park Ave. S.Assoc., 33 AD3d 750, 751-752 [2006]; Katz v Katz, 68 AD2d 536, 542[1979]). Angiolillo, J.P., Sgroi, Cohen and Miller, JJ., concur.