Currie v. Wilhouski, No. 020725/09.

CourtUnited States State Supreme Court (New York)
Writing for the CourtJEFFREY S. BROWN
Citation37 Misc.3d 1207,961 N.Y.S.2d 357,2011 N.Y. Slip Op. 52531
Decision Date27 January 2011
Docket NumberNo. 020725/09.
PartiesBrian CURRIE and Lisa Currie, Plaintiffs, v. Susan WILHOUSKI, Robert Wilhouski and Amica Mutual Insurance Company, Defendants.

37 Misc.3d 1207
961 N.Y.S.2d 357
2011 N.Y. Slip Op. 52531

Brian CURRIE and Lisa Currie, Plaintiffs,
Susan WILHOUSKI, Robert Wilhouski and Amica Mutual Insurance Company, Defendants.

No. 020725/09.

Supreme Court, Nassau County, New York.

Jan. 27, 2011.

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.

                ¦The following papers were read on this motion:Papers Numbered ¦
                ¦Notice of Motion, Affidavits (Affirmations), Exhibits Annexed¦1 ¦
                ¦Answering Affidavit ¦2, 3¦
                ¦Reply Affidavit ¦4 ¦

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 “lateral pressure from the retained slope soils and live loads at the top of the wall. The original retaining wall was not designed properly to support these loads. The retaining wall along 103 Shoreview Road was not maintained properly.” 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...

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