Currie v. Wilhouski
| Citation | 37 Misc.3d 1207,961 N.Y.S.2d 357,2011 N.Y. Slip Op. 52531 |
| Decision Date | 27 January 2011 |
| Docket Number | No. 020725/09.,020725/09. |
| Parties | Brian CURRIE and Lisa Currie, Plaintiffs, v. Susan WILHOUSKI, Robert Wilhouski and Amica Mutual Insurance Company, Defendants. |
| Court | United States State Supreme Court (New York) |
OPINION TEXT STARTS HERE
Kaye & Lenchner, Esqs. Mineola, attorney for plaintiffs.
McMahon Martine & Gallagher, LLP, Brooklyn, attorney for defendants Wilhouskis.
Keller O'Reilly & Watson, PC, Woodbury, attorney for defendant Amica.
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¦The following papers were read on this motion:Papers Numbered ¦
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¦Notice of Motion, Affidavits (Affirmations), Exhibits Annexed¦1 ¦
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¦Answering Affidavit ¦2, 3¦
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¦Reply Affidavit ¦4 ¦
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Defendant, Amica Mutual Insurance (Amica), moves pursuant to CPLR § 3212 to dismiss plaintiffs' complaint or in the alternative pursuant to CPLR § 603 severing the claims against it. Plaintiffs, in opposition, ask this court to search the record pursuant to CPLR § 3212(b) and grant them summary judgment against all defendants.
Plaintiffs, Brian Currie and Lisa Currie, commenced an action for property damage against their neighbors, defendants Susan Wilhouski and Robert Wilhouski (Wilhouski). Plaintiffs reside at 107 Shoreview Road and defendants Wilhouski reside at 101 Shoreview Road in Manhasset, New York. It is alleged that there are contiguous retaining walls across the rear of plaintiffs' and defendant Wilhouski's properties. Plaintiffs allege that the retaining wall on the Wilhouski's property collapsed on or about May 7, 2009 causing a “chain reaction and/or zipper effect” thus causing property damage to plaintiffs' retaining wall. As part of their complaint, plaintiffs commenced a cause of action for declaratory judgment against their homeowner carrier, Amica Mutual Insurance Co.
Defendant Amica issued a homeowner's policy to plaintiffs effective May 10, 2008 to May 10, 2009 covering the plaintiffs' premises located at 107 Shoreview Road, Manhasset, New York. By letter dated May 27, 2009, Amica disclaimed coverage for this event in that this loss does not fall within the ambit of the additional collapse coverage of the Amica insurance contract or the “Section 1 Perils Insured Against.” Amica also contends that “First Party Property Exclusions” also apply which includes the “Earth Movement” exclusion and an exclusion for “faulty, inadequate or defective planning, zoning, development, surveying design, workmanship, repair, construction” of the retaining wall in issue.
Attached to the moving papers as an exhibit is a letter dated July 15, 2009 from Steven McEvoy, a structural engineer. He concludes that the retaining wall failed as a result of Furthermore, the “retaining wall that collapsed in the rear of the plaintiffs' property was the result of a chain reaction (zipper effect) due to the failure of the retaining wall on the property of # 103.”
In support of this application is an affidavit of Robert Waldner, Branch Claims Manager for Amica together with an affidavit from Amica's counsel. Incorporated by reference is the insurance policy in effect between Brian Currie and Amica for the period of May 10, 2008 until May 10, 2009 insuring the Currie property located at 107 Shoreview Road, Manhasset, New York. Also incorporated by reference is a disclaimer letter addressed to plaintiffs' counsel signed by David J. Murphy of the claims department.
In opposition to this motion, counsel for plaintiffs submits an affirmation. Plaintiffs also submit an affidavit from Steven McEvoy, licensed structural engineer, which mirrors his letter dated July 15, 2009. Plaintiffs argue that defendant Amica fails to provide any competent admissible proof. The language of the policy does not exclude coverage for retaining walls. Further, plaintiff argues that defendant Amica failed to provide any proof that damage was caused by any of the expressed exclusions as listed in the policy.
In opposition to this motion, counsel for defendants Wilhouski argues that summary judgment should be denied since it is premature due to the fact that discovery has not been completed; and it is procedurally defective as against them since defendants Wilhouski have not brought a summary judgment motion against the plaintiffs.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853;Zuckerman v. City of New York, 49 N.Y.2d 557, 562;Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hospital, 68 N.Y.2d 320;Zuckerman v. City of New York, supra, at p 562).
CPLR 3212(b) provides that a summary judgment motion “shall be supported by affidavit” of a person “having knowledge of the facts” as well as other admissible evidence ( see GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967). A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden. (JMD Holding Corp. v. Cong. Fin. Corp., 4 NY3d 373, 384 [2005];Brown v. City of New York, 22 Misc.3d 893).
In support of this application is an affidavit from Robert Waldner, Branch Manager for the defendant Amica, Long Island Regional Office. He incorporates by reference a “true and accurate” copy of the insurance policy that was in effect between plaintiff Brian Currie and defendant Amica. He also incorporates by reference a disclaimer letter from the Long Island Regional Office located in Providence, Rhode Island. This letter is signed by David J. Murphy of the claims department. The only other affirmation is from defendant's attorney who although states he is familiar with the facts, does not claim to have any “personal knowledge” of the facts.
On summary judgment, the “bare affirmation” of an attorney, which is not based upon personal knowledge of the facts, is “without evidentiary value.” ( See Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];Feratovic v. Lun Wah, Inc., 284 A.D.2d 368, 368–69, 725 N.Y.S.2d 892 [2d Dept.2001].) The “information and belief” of the attorney adds nothing ( see Henriquez v. Purins, 245 A.D.2d 337, 338, 666 N.Y.S.2d 190 [2d Dept.1997]; Wood v. Nourse, 124 A.D.2d 1020, 1021, 509 N.Y.S.2d 223 [4th Dept.1986] ), even when based upon the attorney's review of the client's file ( see Park Health Center v. Green Bus Lines Inc., 2002 N.Y. Slip Op 40029 [U], 2002 WL 416484 [App. Term 2nd & 11th Jud. Dists.; Building Management Co., Inc. v. Vision Quest of Flatbush, 1 Misc.3d 681] ).
As a result, defendant Amica has failed to meet its burden. First there is no admissible evidence from one having personal knowledge of the facts with respect to...
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