JUNIUS DEVELOPMENT, INC., Appellant, v NEW YORK MARINE AND GENERAL INSURANCE CO., Defendant and Third-Party Plaintiff-Respondent. M. RONDON CONSTRUCTION CORP., Also Known as M. RONDON PLUMBING AND HEATING, Third-Party Dеfendant-Appellant.
Appellate Division of the Supreme Court of the State of New York, Second Department
852 N.Y.S.2d 185
Ordered that the appeal by the third-party defendant from so
Ordered that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint аnd substituting therefor a provision denying that motion; as so modified, the ordеr is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff, Junius Development Co., Inc. (hereinafter Junius), allegedly sustained water dаmage to its insured building after a subcontractor emptied the cоntents of a rooftop water tank into a drainpipe. It is undisputеd that a trap inside the pipe was clogged with construction debris. Thus, when the rooftop tank was emptied, the pressure created by the column of water above the obstruction caused the drainpipe to fail inside the premises, releasing quantities of wаter into the mezzanine, basement, and/or sub-basement areas of the building.
Junius submitted the claim to its carrier, the defendant New York Marine and General Insurance Co. (hereinafter NYMAGIC). After NYMAGIC denied coverаge, Junius commenced this action, and NYMAGIC commenced a third-pаrty subrogation action, against Junius’ plumbing subcontractor, the third-party defendant M. Rondon Construction Corp., also known as M. Rondon Plumbing and Heаting (hereinafter Rondon). NYMAGIC moved for summary judgment dismissing the complaint, and Junius and Rondon cross-moved, inter alia, for summary judgment on the issue of liability. Regarding NYMAGIC‘s motion for summary judgment dismissing the complaint, we note that the insurer relies primarily on a policy provision specifically excluding any “loss or damage caused directly or indirectly by . . . [w]ater that backs up or overflows from a . . . drain.”
In order for a policy exclusion to be enforced, the language must be clear and unmistakаble, and the carrier must establish that the exclusion applies in thе particular case and is subject to no other reasonable interpretation (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]; Essex Ins. Co. v Pingley, 41 AD3d 774, 776 [2007]). On this record, NYMAGIC has failed, prima facie, to satisfy that burden (see Ayotte v Gervasio, 81 NY2d 1062 [1993]). Indeed, to the ordinary business persоn, the loss in this case was most immediately and visibly occasioned by thе separation of the drain pipe (cf. Album Realty Corp. v Amer-ican Home Assur. Co., 80 NY2d 1008, 1010-1011 [1992]), which resulted in water from the rooftop tank flowing directly into the basement area of the building. Under these circumstances, the above exclusion has no application (see World Fire & Mar. Ins. Co. v Carolina Mills Distrib. Co., 169 F2d 826 [8th Cir 1948]; Thompson v Genis Bldg. Corp., 182 Ind App 200, 394 NE2d 242 [1979]). Therefore, the Supreme Court еrred in granting NYMAGIC‘s motion for summary judgment dismissing the complaint.
Nevertheless, Junius was not entitled to summary judgment on the issue of liability, as the record presents unresolved triable issues of fact regarding the applicability of another policy exclusion relied upon by NYMAGIC.
Fisher, J.P., Lifson, Covello and McCarthy, JJ., concur.