3502 Partners LLC v. Great Am. Ins. Co. of N.Y.

• Decision Date: 15 September 2021
• Docket Number: 651327/2021
• Citation: 155 N.Y.S.3d 283,73 Misc.3d 523
• Parties: 3502 PARTNERS LLC, Plaintiff, v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Defendant.
• Court: New York Supreme Court

73 Misc.3d 523
155 N.Y.S.3d 283

3502 PARTNERS LLC, Plaintiff,
v.
GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Defendant.

651327/2021

Supreme Court, New York County, New York.

Decided on September 15, 2021

155 N.Y.S.3d 284

Wegg & Myers P.C. (Joshua Lee Mallin, Dennis T. D'Antonio, New York, Frank Lanza and Anne Marie Bossart of counsel) for plaintiff.

Mound Cotton Wollan & Greengrass, LLP (Kevin F. Buckley, New York, and Kayla M. Scoccola of counsel) for defendant.

Arthur F. Engoron, J.

For the reasons set forth hereinbelow, the instant motion, pursuant to CPLR 3211(a)(1) and (7), by defendant, Great American Insurance Company of New York, to dismiss the complaint in its entirety, is granted.

Background

The facts, simply stated and as alleged in the complaint (NYSCEF Doc. No. 1), are as follows.

Defendant issued a risk property insurance policy to plaintiff ("the Policy"), insuring plaintiff's property located at 35-02 Northern Blvd., Long Island City, New York 11101 ("the Property"). The Property, a two-story brick and mortar building with multiple commercial tenants, is adjacent to and directly behind a piece of property owned and maintained by the Metropolitan Transit Authority ("MTA"), known as the Sunnyside Yard, a 180-acre railroad yard ("the MTA Property"). As relevant hereto, the MTA Property was undergoing excavation and construction activity during the time in question. On May 5, 2020, while the Policy was in full force and effect, the Property "suffered a loss when, as a direct result of the excavation at the [MTA Property], the [Property's] back exterior wall shifted outward, detached from its foundation and forced a significant outward bulge resulting in cracking to the interior floors." (NYSCEF Doc. No. 1, at 5). As a result of this loss, plaintiff suffered damages in excess of $3,320,000.00. That same day, plaintiff notified defendant of the loss. On or about June 24, 2020, defendant denied plaintiff's claim and refused to provide any coverage under the Policy.

On February 26, 2021, plaintiff commenced the instant breach of contract action, seeking a judgment (1) on plaintiff's first cause of action, for breach of contract,

155 N.Y.S.3d 285

in an amount believed to be in excess of $3,000,000.00 (representing the damages to the Property), plus interest thereon from May 5, 2020; and (2) on plaintiff's second cause of action, for breach of contract-loss of business income and extra expenses, in an amount believed to be in excess of $320,000.00 (representing plaintiff's business income and extra expenses losses), plus interest thereon from May 5, 2020.

Defendant now moves, pursuant to CPLR 3211(a)(1) and (7), to dismiss the complaint, in lieu of an answer, on the grounds that an "earth movement" exclusion contained in the Policy bars coverage for plaintiff's claim. Plaintiff opposes the motion.

Discussion

Dismissal pursuant to CPLR 3211(a)(1) is warranted where the documentary evidence submitted conclusively establishes as a matter of law a defense to the asserted claims. Leon v. Martinez , 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994) ; accord ; Warberg Opportunistic Trading Fund, L.P. v. GeoResources, Inc. , 112 A.D.3d 78, 82-83, 973...