VALENTE v. UTICA FIRST INSURANCE COMPANY (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting defendant's motion, dismissing the amended complaint and granting judgment in favor of defendant as follows:

It is ADJUDGED AND DECLARED that defendant is not obligated to provide coverage to plaintiffs for the underlying claim,

and as modified the order is affirmed without costs.

Memorandum:  Plaintiffs commenced this action seeking, inter alia, a declaration that defendant is obligated to provide insurance coverage for damage to plaintiffs' house pursuant to a homeowners' insurance policy issued by defendant.  Defendant appeals and plaintiffs cross-appeal from an order that denied defendant's motion for summary judgment dismissing the complaint and for judgment on its counterclaim for a declaration that defendant is not obligated to provide coverage to plaintiffs for the underlying claim, granted those parts of plaintiffs' cross motion seeking leave to amend their complaint and to be relieved of certain admissions, and denied that part of plaintiffs' cross motion for a declaration that defendant is obligated to provide coverage to them for their underlying claim.

We agree with defendant on its appeal that, regardless of whether we rely upon the allegations in plaintiffs' original or amended complaint, defendant is not obligated to provide coverage for plaintiffs' underlying claim because the insurance policy's earth movement exclusion applies to the damage caused to their home (see Kula v. State Farm Fire & Cas. Co., 212 A.D.2d 16, 21, 628 N.Y.S.2d 988 [4th Dept. 1995], lv dismissed in part and denied in part 87 N.Y.2d 953, 641 N.Y.S.2d 827, 664 N.E.2d 892 [1996]).  Thus, Supreme Court erred in denying defendant's motion, and we therefore modify the order accordingly.  The insurance policy provided that “earth movement” included “earth sinking,” “shifting,” or “contracting.”  Even assuming, arguendo, that there was a sinking of the ground underneath the house's foundation as opposed to erosion or washout, we conclude that such sinking nevertheless constituted earth movement that proximately caused the claimed loss (see id. at 20, 628 N.Y.S.2d 988).  It is irrelevant that the earth movement may have been precipitated by the peril of above-surface downspout water, which is arguably covered by the policy, as opposed to sump pump leakage, which is excluded from coverage, because here it was the earth movement, not the flow of water, that proximately caused the damage to the house (see Sheehan v. State Farm Fire & Cas. Co., 239 A.D.2d 486, 487, 658 N.Y.S.2d 61 [2d Dept. 1997]).  Thus, we conclude that the earth movement exclusion applies and defendant is not obligated to cover plaintiffs' loss (see generally Kula, 212 A.D.2d at 20–21, 628 N.Y.S.2d 988).

In light of our determination, the parties' remaining contentions are academic.