Lopez v. Insurance Co. of North America

289 A.D.2d 205, 734 N.Y.S.2d 849, 2001 N.Y. App. Div. LEXIS 11805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 2001
• Status: Published

Opinion

In an action for a judgment declaring that the defendants improperly denied coverage under a policy of insurance issued to the plaintiffs, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated September 21, 2000, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment declaring that the insurance policy at issue does not provide coverage for the plaintiffs’ loss.

On their motion for summary judgment, the defendants established, prima facie, that the leak in the oil tank feed line was the result of corrosion and was not caused by a sudden and accidental event. In opposition, the plaintiffs failed to present evidence sufficient to raise a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557). The Supreme Court properly determined that in the absence of an expert’s affidavit the plaintiffs’ claim that the leak was caused when the oil tank shifted as a result of flooding was entirely speculative (see, Madtes v Town of Brookhaven, 275 AD2d 442).

Accordingly, since the loss in question was not caused by one of the specified perils set forth in the subject insurance policy, the defendants properly denied coverage. O’Brien, J. P., Florio, Schmidt and Townes, JJ., concur.