Vasile v. Hartford Accident & Indemnity Co.

213 A.D.2d 541, 624 N.Y.S.2d 56, 1995 N.Y. App. Div. LEXIS 2928

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1995
• Status: Published

Opinion

—In an action to recover under an insurance policy, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), entered October 4, 1993, as denied its motion for summary judgment dismissing the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendant’s motion is granted in its entirety, and the complaint is dismissed.

The plaintiffs seek to recover under an "all-risk” policy of homeowners’ insurance for the claimed loss that their artesian well failed to produce a sufficient quantity of potable water after many years of use. An insured seeking to recover for a loss under an insurance policy has the burden of proving that a loss occurred and also that the loss was a covered event within the terms of the policy (see, Green v Globe & Rutgers Fire Ins. Co., 200 App Div 343). Since the plaintiffs failed to demonstrate a fortuitous event causing the claimed loss separate from the nature and inherent qualities of the well itself, the court should have granted summary judgment to the defendant dismissing the complaint (see, 80 Broad St. Co. v United States Fire Ins. Co., 88 Misc 2d 706, affd 54 AD2d 888). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.