Kannatt v. Valley Forge Insurance

Jun 17, 1996
Versions:228 A.D.2d 564
644 N.Y.S.2d 530
644 N.Y.2d 530
1996 N.Y. App. Div. LEXIS 7176

The plaintiffs’ basement was flooded after a heavy rainstorm. Their homeowner’s insurance policy, issued by the defendant, contained an exclusion for "loss caused directly or indirectly by * * * flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind”. In support of its motion for summary judgment, the defendant established that the loss was caused by surface water flowing down the incline of the backyard into the basement through the bottom of the basement door. Thus, *565the defendant proved that an excluded peril was the dominant and proximate cause of the water damage (see, Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008; Novick v United Serv. Auto. Assn., 225 AD2d 676; Casey v General Acc. Ins. Co., 178 AD2d 1001).

In opposition, the plaintiffs submitted an affirmation of their attorney, who had no personal knowledge of the loss. Moreover, the attorney’s contention that the loss was caused by either the wind or a falling object, which pierced a hole in the basement door, allowing rain to fall directly from the sky, through the door, into the basement, was based upon speculation and conjecture, and thus, was insufficient to defeat the defendant’s motion (see, Zuckerman v City of New York, 49 NY2d 557, 563).

In light of our determination, we need not address the defendant’s remaining contention. Bracken, J. P., O’Brien, Goldstein and Florio, JJ., concur.