25 Bay Terrace Associates, L.P. v. Public Service Mutual Insurance Co.25 Bay Terrace Associates, L.P. v. Public Service Mutual Insurance Co.
when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected (see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]). “In addition, a defendant who has actual knowledge of a particular ongoing and recurring hazardous condition may be charged with constructive notice of each specific reoccurrence of that condition” (Willis v Galileo Cortlandt, LLC, 106 AD3d 730, 731 [2013]; see Amendola v City of New York, 89 AD3d 775, 775-776 [2011]; Milano v Staten Is. Univ. Hosp., 73 AD3d 1141, 1142 [2010]; Weisenthal v Pickman, 153 AD2d 849, 851 [1989]). Mere notice of a general or unrelated condition, however, is insufficient to constitute constructive notice of the specific condition that caused the plaintiff‘s injuries (see Wienges v Newburgh Mall, LLC, 94 AD3d 1110, 1110-1111 [2012]; Ellisy v Eklecco, LLC, 56 AD3d at 518; Anderson v Central Val. Realty Co., 300 AD2d 422, 423 [2002]).
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendants had actual notice of a recurring leak in the bathroom ceiling (cf. Willis v Galileo Cortlandt, LLC, 106 AD3d at 732; Milano v Staten Is. Univ. Hosp., 73 AD3d at 1142; Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346 [2004]). The evidence submitted by the plaintiff showed that the same area of the bathroom ceiling had leaked on numerous occasions prior to the incident, causing the same area of the ceiling to collapse. Over a period of two to three years prior to the incident, the plaintiff‘s family made numerous complaints about the bathroom ceiling leaking, and repairs were performed on the ceiling on four or five occasions. Moreover, approximately three days prior to the incident, complaints were made to the superintendent of the building that the ceiling was leaking again and that a hole had developed. In opposition, the defendants failed to raise a triable issue of fact.
The plaintiff‘s remaining contention has been rendered academic in light of our determination.
Accordingly, the Supreme Court properly granted the plaintiff‘s motion for summary judgment on the issue of liability. Leventhal, J.P., Maltese, LaSalle and Brathwaite Nelson,
In an action, inter alia, to recover damages for breach of an insurance policy, the defendant appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated November 21, 2014, which denied its motion pursuant to
Ordered that the order is affirmed, with costs.
On August 28, 2011, an apartment building located in Staten Island, which was owned by the plaintiff, allegedly sustained damage during Hurricane Irene, which caused water to seep into 28 of the apartment units in the building. At the time the alleged damage was sustained, the plaintiff had a commercial liability and property insurance policy issued by the defendant that covered the building. The plaintiff submitted a claim to the defendant for the damage sustained as a result of the hurricane, and the defendant offered the plaintiff $5,186.26 in satisfaction of the claim. The estimated loss sustained by the plaintiff was in excess of $500,000 in repairs and loss of rental income.
The plaintiff commenced this action to recover damages against the defendant for breach of the insurance policy (first cause of action) and, in effect, for breach of the implied covenant of good faith and fair dealing (second cause of action). With respect to the second cause of action, the plaintiff alleged that the defendant refused to provide coverage after initially verbally representing that the loss would be covered in full. The plaintiff further alleged that the defendant engaged the services of “unlicensed professionals” to adjust the claim and then refused to reconsider its disclaimer when presented with proof that the disclaimer was without merit. The plaintiff also sought to recover punitive damages and attorney‘s fees.
The defendant moved pursuant to
“On a motion to dismiss a complaint pursuant to
“Implicit in every contract is a covenant of good faith and fair dealing which encompasses any promise that a reasonable promisee would understand to be included” (Elmhurst Dairy, Inc. v Bartlett Dairy, Inc., 97 AD3d 781, 784 [2012]; see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]; Doody v Liberty Mut. Group, Inc., 137 AD3d 959, 960 [2016]). “The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct” (Gutierrez v Government Empls. Ins. Co., 136 AD3d at 976; see Moran v Erk, 11 NY3d 452, 456 [2008]; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153 [2002]; Atlas El. Corp. v United El. Group, Inc., 77 AD3d 859, 861 [2010]). “Such a cause of action is not necessarily duplicative of a cause of action alleging breach of contract” (Gutierrez v Government Empls. Ins. Co., 136 AD3d at 976; see Elmhurst Dairy, Inc. v Bartlett Dairy, Inc., 97 AD3d at 784). Here, the second cause of action alleged, in effect, a failure to act in good faith. In opposition to the motion, the plaintiff submitted affidavits from, among others, its property manager, one of its tenants, and its roofing contractor, all of whom stated that the defendant‘s adjustor who inspected the property on two occasions prior to the defendant‘s denial of the majority of the claim verbally assured them that water had infiltrated the building as a result of the hurricane and that the loss was completely covered under the policy. The affidavits submitted by the plaintiff also alleged that, subsequent to that representation, the defendant sent an engineer to inspect the building for the sole purpose of preparing a report, which was factually inaccurate, to support its denial of the entire claim. According the plaintiff the benefit of every favorable inference, the allegations of the complaint, the affidavits, and the evidence submitted by the plaintiff in opposition to the motion
The defendant‘s remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendant‘s motion to dismiss the second cause of action and so much of the complaint as sought punitive damages and attorney‘s fees. Hall, J.P., Austin, Sgroi and Connolly, JJ., concur.
Hall, J.P., Austin, Sgroi and Connolly, JJ.