SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
911
CA 11-00508
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.
JOHN VISCOSI AND GEORGINA VISCOSI,
PLAINTIFFS-RESPONDENTS,
V MEMORANDUM AND ORDER
PREFERRED MUTUAL INSURANCE COMPANY,
DEFENDANT-APPELLANT.
O’SHEA MCDONALD & STEVENS, LLP, ROME (TIMOTHY BRIAN O’SHEA OF
COUNSEL), FOR DEFENDANT-APPELLANT.
GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFFS-RESPONDENTS.
Appeal from an order of the Supreme Court, Oneida County (Anthony
F. Shaheen, J.), entered September 2, 2010. The order, insofar as
appealed from, denied the motion of defendant for summary judgment
dismissing the complaint.
It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, defendant’s motion is
granted and the complaint is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for
an alleged breach of an insurance policy issued by defendant. We note
at the outset that, although defendant purports to appeal from “each
and every part” of the order, it is not aggrieved by that part of the
order denying plaintiffs’ cross motion for summary judgment on the
complaint and thus may not appeal therefrom (see CPLR 5511). We agree
with defendant that Supreme Court erred in denying its motion for
summary judgment dismissing the complaint (see generally Government
Empls. Ins. Co. v Kligler, 42 NY2d 863, 864), and we therefore reverse
the order insofar as appealed from.
The policy excluded coverage for loss “to the inside of a
building or the property contained in a building caused by rain, snow,
[or] sleet . . . unless the direct force of wind or hail damages the
building causing an opening in a roof or wall and the rain, snow, [or]
sleet . . . enters through [that] opening . . . .” In support of its
motion, defendant submitted the deposition testimony of plaintiff John
Viscosi in which he testified that the damage at issue was caused by
water “that had seeped” into the ceiling of several rooms in the
covered premises, and he specifically denied that either wind or hail
created an opening in the building. We also agree with defendant that
the ceiling did not collapse within the meaning of the policy, which
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CA 11-00508
specifically states that “any part of a building that is standing is
not considered to be in a state of collapse even if it shows evidence
of cracking, bulging, sagging, bending, leaning, settling, shrinkage
or expansion.” Here, the record establishes that the ceiling did not
“abrubt[ly] fall[] down or cav[e] in” but, rather, the ceiling was
noticeably bowed for several months before plaintiffs had it
demolished. In light of our determination, defendant’s remaining
contentions are academic.
Entered: September 30, 2011 Patricia L. Morgan
Clerk of the Court