LABATE v. LIBERTY MUTUAL INSURANCE COMPANY

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Supreme Court, Appellate Division, Second Department, New York.

Madeline E. LABATE, et al., respondents-appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, appellant-respondent.

Decided: November 27, 2007

GLORIA GOLDSTEIN, J.P., STEVEN W. FISHER, EDWARD D. CARNI, and WILLIAM E. McCARTHY, JJ. Feldman, Rudy, Kirby & Farquharson, P.C., Westbury, N.Y. (Brian R. Rudy of counsel), for appellant-respondent. Alan Jay Martin, New York, N.Y. (Seth A. Hauser of counsel), for respondents-appellants.

In an action, inter alia, to recover damages for breach of an insurance contract, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated March 20, 2007, as denied its motion for summary judgment dismissing the complaint and the plaintiffs cross-appeal from so much of the same order as denied their cross motion, in effect, for summary judgment on the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the defendant's motion for summary judgment dismissing the complaint and substituting therefor a provision granting the defendant's motion;  as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant.

The defendant, Liberty Mutual Insurance Company, issued a Deluxe Homeowners Insurance Policy (hereinafter the policy) insuring the residence of the plaintiffs, Madeline E. Labate and Joseph Labate, for the period of May 9, 2003, to May 9, 2004.   During the coverage period, the plaintiffs' house suffered extensive damage when certain walls cracked and the concrete basement floor slab settled and cracked.   The plaintiffs made a claim to the defendant pursuant to the policy for the building and structural damages sustained at the premises.   However, the defendant disclaimed coverage based upon language in the insurance policy which excluded losses, inter alia, due to “Earth Movement ․ earth sinking, rising or shifting” and due to the “[s]ettling, shrinking, bulging or expansion, including resultant cracking, of pave-ments, patios, foundations, walls, floors, roofs or ceilings.”

In 2003 the plaintiffs commenced the instant action against the defendant, seeking damages for breach of the insurance contract and related attorney's fees.   The defendant moved for summary judgment dismissing the complaint based on the policy's exclusionary language, and the plaintiffs cross-moved, in effect, for summary judgment on the complaint.   The Supreme Court denied both the defendant's motion and the plaintiffs' cross motion, finding triable issues of fact.   We modify.

 “ ‘[C]ourts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies' ” (Sanabria v. American Home Assur. Co., 68 N.Y.2d 866, 868, 508 N.Y.S.2d 416, 501 N.E.2d 24, quoting State of New York v. Home Indem. Co., 66 N.Y.2d 669, 671, 495 N.Y.S.2d 969, 486 N.E.2d 827), whose unambiguous provisions must be given “their plain and ordinary meaning” (United States Fid. & Guar. Co. v. Annunziata, 67 N.Y.2d 229, 232, 501 N.Y.S.2d 790, 492 N.E.2d 1206;  see Maroney v. New York Cent. Mut. Fire Ins. Co., 5 N.Y.3d 467, 471-472, 805 N.Y.S.2d 533, 839 N.E.2d 886;  Catucci v. Greenwich Ins. Co., 37 A.D.3d 513, 514, 830 N.Y.S.2d 281).   As such, “any such exclusions or exceptions from coverage must be specific and clear in order to be enforced” (Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 311, 486 N.Y.S.2d 873, 476 N.E.2d 272).   The plain meaning of the policy's language may not be disregarded in order to find an ambiguity where none exists (see Bassuk Bros. v. Utica First Ins. Co., 1 A.D.3d 470, 471, 768 N.Y.S.2d 479;  Garson Mgt. Co. v. Travelers Indem. Co. of Ill., 300 A.D.2d 538, 539, 752 N.Y.S.2d 696;  Sampson v. Johnston, 272 A.D.2d 956, 708 N.Y.S.2d 210).

 In this case, the Supreme Court erred in denying the defendant's motion for summary judgment dismissing the complaint.   The defendant met its initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that the exclusions for “Earth Movement” and “settling” clearly and unambiguously applied to the property loss experienced by the plaintiffs (see Cali v. Merrimack Mut. Fire Ins. Co., 43 A.D.3d 415, 417, 841 N.Y.S.2d 128;  Sheehan v. State Farm Fire & Cas. Co., 239 A.D.2d 486, 658 N.Y.S.2d 61;  Kula v. State Farm Fire & Cas. Co., 212 A.D.2d 16, 20, 628 N.Y.S.2d 988;  Nowacki v. United Servs. Auto. Assn. Prop. & Cas. Ins. Co., 186 A.D.2d 1038, 588 N.Y.S.2d 224).   The defendant's expert and the plaintiffs' own engineers, hired to remedy the conditions, all opined that the property damage was caused directly or indirectly by earth movement and settlement.   In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

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