The following e-filed documents, listed by NYSCEF document number (Motion 012) 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 303, 304 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION BACKGROUND This litigation arises out of Carmen Anthony Restaurant Group’s (“CARG”) insurance claim to PSIC for alleged damage to its vacant restaurant located at 1770 Berlin Turnpike, Wethersfield, Connecticut 16109 (the “Premises”) from frozen pipe bursts that reportedly occurred on January 6, 2014. Specifically, sprinkler pipes and domestic water lines froze and burst. PSIC denied CARG’s insurance claim on July 30, 2014, alleging an exclusion that barred coverage because the insured property had been vacant and without heat for several months before the loss occurred, without any steps taken to protect the plumbing systems from freezing. Shortly after the loss, the initial plaintiff in this action, Hayden Asset VII, LLC (“Hayden”), foreclosed on CARG’s mortgage. This action followed. The property was since sold and a new plaintiff substituted in. PENDING MOTION Defendant moved for summary judgment dismissing the action in July 2021. The motion was fully submitted in September 2021. The court (Kelly, J) scheduled oral argument for December 13, 2021, but on the date of argument recused and directed that the matter be reassigned. In January 2022, this Court took over Part 57 from Justice Kelly. Recently it came to this Court’s attention that the matter had never been assigned to a new Part and that the motion was still subjudice. For the reasons stated below, the motion is granted, and the action is dismissed. ALLEGED FACTS PSIC issued policy number CP 021545 to CARG for the Premises effective June 1, 2013, to June 1, 2014 (the “Policy”). The Premises is a single-story, 9,445 square-foot restaurant with a 960 square-foot partial basement. On or about January 7, 2014, CARG notified PSIC of the loss via an ACORD Property Loss Notice that asserting severe cold weather had resulted in water damage throughout the premises. That same day, the mortgagee, Naugatuck Valley Savings & Loan assigned the mortgage for the Premises to Hayden. In connection with Hayden’s foreclosure action against CARG, on April 30, 2014, CARG assigned and transferred its rights to any insurance proceeds arising out of the alleged loss to Hayden. As part of its investigation, PSIC hired engineer Tom Dombrowski of Engineering Design & Testing Corp., to determine the cause of the frozen and burst pipes. Dombroski inspected the Premises on February 17, 2014, and reviewed certain records, including the natural gas meter readings, the Fire Marshall’s report, and the repair records. Dombrowski determined that both the sprinkler lines and domestic water lines had frozen and burst because heat was not being maintained to the Premises. Based on the gas meter readings provided for the Premises, Dombrowski determined that there was little to no gas usage in the months before the loss, and that the lack of heat caused the pipes to freeze and burst. Dombrowski’s determination that both the sprinkler pipes and domestic water lines released water is supported by the January 6 and 7, 2014 invoices from Fire Protection Team, which indicate that this company repaired seven sprinkler fittings and heads that were damaged due to the freezing conditions. A January 15, 2014, invoice from Macca Plumbing & Heating, indicates that this company repaired domestic water lines in the bathrooms and the kitchen on January 9, and 10, 2014. Moreover, the Fire Marshall’s incident report states that domestic and sprinkler pipes burst. As part of its investigation, on April 18, 2014, PSIC also conducted the examination under oath (“EUO”) of CARG’s Chief Financial Officer, Sharon Muthig. Muthig testified that the restaurant ceased operations in July 2013 due to the economy, and that after the restaurant closed in July 2013, Carmen Vacalebre would periodically check on the Premises. Muthig could not identify anything specific that Vacalebre did to ensure that the Premises was being heated or to winterize the Premises. Defendant submits no affidavit from Vacalebre asserting that any steps were taken to make sure the heating was maintained. Muthig stated that she paid the gas-heat bill during this time but did not keep track of the usage or the outside temperature. Muthig testified that she did not visit the Premises at any time between the restaurant’s closing in July of 2013 and the loss on January 6, 2014 and did not know if the thermostat was turned on during this time, but that on the date of the loss the thermostat at the Premises read 46 degrees when she arrived and that it was still “warm” inside the Premises. However, it is conceded that the outside temperature on that date reached 55 degrees. Muthig also testified that there was an electric heater for the sprinkler system in the hallway past the kitchen which was on and working on the date of the loss. Plaintiff’s expert, Paul Dudley Smith, opines that for the temperature to have reached 46 degrees in the building, the heat had to have been operational in some capacity, and questions the basis for some of Dombrowski’s conclusions. The pre-loss heating records also show that heat was not being maintained before the loss. The gas meter readings were taken about every thirty days. The last meter reading taken before the loss, on December 20, 2013, indicates that zero gas heat was used between November 21, 2013, and December 20, 2013. In contrast, the Premises used 2,114 CCF of natural gas for the same period during the prior year. Moreover, the gas usage between August 21, 2013, and November 21, 2013, was extremely low and insufficient to maintain heat at the Premises. Between August 21, 2013, and November 2013, the Premises used 91 CCF of natural gas. For frame of reference, the Premises used 6,743 CCF of natural gas during the same period the prior year (between August 21, 2012, and November 21, 2012). The first meter reading taken after the loss was on January 14, 2014. That reading indicates that 278 CCF of gas was used between December 20, 2013, and January 14, 2014. During that same period the year before, 2,609 CCF of gas was used. Since zero gas was used in December 2013, and gas was used to heat the property after the loss, engineer Dombrowski opined that the 278 CCF of gas was used between January 7, 2014, and the January 14, 2014, meter reading, alleging this determination is further supported by the fact that 1,583 CCF of gas was used between January 14, 2014 and February 17, 2014. With regard to damages, Muthig could not state how much damage was done to the Premises as a result of the loss. After completing its investigation, PSIC denied CARG’s insurance claim on July 30, 2014, because the Premises had been vacant and without heat for several months before the loss occurred, without any steps taken to protect the plumbing systems from freezing. PSIC asserted that under such circumstances, the Policy contains several exclusions that bar coverage. A contemporaneous estimate of $137,214.07 was obtained for repairing the damage from the loss. The estimate does not distinguish between water damage from domestic lines as opposed to water damage from the sprinkler pipes. In March 2015, after the policy expired, there was subsequent water damage to the Premises from ice damming on the roof, which resulted in water entering the Premises and traveling down to the basement. As a result of this in May 2017, three tanker trucks of standing water had to be removed from the Premises. On May 1, 2017, Hayden sold the Premises to 1770 Berlin Turnpike, LLC for $625,000. Hayden spent only $1443.80 on repairs related to the loss prior to the sale. Those sums were spent to dry the building. Plaintiff asserts $725,000.00 in damages based on its claim that the sales price for the Premises was reduced because of the January 2014 loss, and a March 2013 appraisal of the Premises in the amount of $1,350,000. DISCUSSION To prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). However, “[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial” (Dallas-Stephenson v. Waisman, 39 AD3d 303, 306 [1st Dept 2007], citing Alvarez, 68 NY2d at 324). “[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion” (People v. Grasso, 50 AD3d 535,544 [1st Dept 2008]). “On a motion for summary judgment, the court’s function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact” (Martin v. Citibank, N.A., 64 AD3d 477,478 [1st Dept 2009]; see also Sheehan v. Gong, 2 AD3d 166,168 [1st Dept 2003] ["The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues"], citing Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The policy exclusion pertaining to damage caused by frozen domestic water lines provides: 2.We will not pay for loss or damaged caused by or resulting from any of the following: * * * g. Water, other liquids, powder or molten material that leaks or flows from plumbing, heating, air conditioning or other equipment (except fire protective systems) caused by or resulting from freezing, unless: (1) You do your best to maintain heat in the building or structure; or (2) You drain the equipment and shut off the supply if heat is not maintained. In addition, the Policy contains the following Vacancy Provision: If the building where loss or damage occurs has been vacant for more than 60 consecutive days before that loss or damage occurs: 1. We will not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss: * * * b. Sprinkler leakage, unless you have protected the system from freezing; * * * d. Water damage. An insurer bears the burden of demonstrating that a policy exclusion defeats an insured’s claim by establishing that the exclusion is “stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case” (Continental Cas. Co. v. Rapid-American Corp., 80 NY2d 640, 652; Moneta Dev. Corp. v. Generali Ins. Co., 212 AD2d 428, 429). Any ambiguity in such exclusion will be construed against the insurer (see, e.g., Ace Wire & Cable Co. v. Aetna Cas. & Sur. Co., 60 NY2d 390, 398; Consolidated Edison Co. v. Hartford Ins. Co., 203 AD2d 83, 84; Ramirez v. United States Fid. & Guar. Co., 133 AD2d 146, 148). At the same time, an insured must demonstrate that an exception to an exclusion applies where coverage rests on the application of such exception (see, State of New York v. Schenectady Hardware & Elec. Co., 223 AD2d 783, 785; Borg-Warner Corp. v. Insurance Co., 174 AD2d 24, 31, lv denied 80 NY2d 753). Monteleone v. Crow Const. Co., 242 A.D.2d 135, 139-40 (1998). Thus, while it is the insurer’s duty to prove that an exclusion applies, the burden of proof shifts to the insured to demonstrate that an exception to an exclusion applies. Id; see also Transel Elevator & Electric, Inc v. First Specialty Insurance Company ___ NYS3d ___, 2023 NY Slip Op 01493; State of New York v. Schenectady Hardware and Elec. Co., 223 A.D.2d 783, 785 (3d Dep’t 1996). In this case, it is undisputed that the Premises were unoccupied and that the damages were caused by water that was discharged because the pipes froze. Defendant has come forth with no evidence to raise an issue of fact as to whether reasonable care was used to maintain heat in the Premises during the time it was vacant. Additionally, it is undisputed that the restaurant stopped operating in July 2013 and was vacant, as defined by the Policy, for more than sixty consecutive days when the loss occurred on January 6, 2014. The Vacancy Provision bars coverage for the water damage from the burst domestic water lines as well as the water that was released from the sprinkler lines. The court does not find that the affidavit of plaintiff’s expert is sufficient to create an issue of fact. Smith’s Affirmation does not include a curriculum vitae or a relevant background of his credentials. Smith never inspected the Premises or spoke with anyone with first-hand knowledge of the relevant facts. The only factual support cited for his conclusion that heat was being maintained before the loss is Muthig’s testimony that when she arrived at the property after learning of the loss on January 6, 2014, the thermostat read 46 degrees and the property felt warm. Defendant explains this by responding that the outside temperature rose to 55 degrees on January 6, 2014. Speculative and conclusory opinions contained in the affidavit of a party’s engineer are insufficient to create an issue of fact. Buchholz v. Trump 767 Fifth Avenue, LLC, 5 N.Y.3d 1 (2005); Amaya v. Denihan Ownership Co., LLC, 30 A.D.3d 327 (1st Dept. 2006); and Alger v. CVS Mack Drug of New York, LLC, 39 A.D.3d 928 (3d Dept. 2007). Additionally, the vacancy provision also provides a basis for exclusion from coverage. Plaintiff concedes the Premises was vacant but argues that this provision does not apply to bar coverage because the Premises’ “dry-pipe” sprinkler system protected it from freezing. However, the dry pipe system did not protect the sprinkler from freezing and there is no evidence that Plaintiff did anything to maintain, manage, preserve or protect the sprinkler system other than put an electric heater in a hallway which was insufficient, and the Vacancy Provision would still bar coverage for the water damage from the domestic water lines. Finally, the court does not find that the motion should be denied as untimely. Movant explained the reason it did not make the motion within 60 days and plaintiff asserts no prejudice. Under these circumstances, the Court has discretion to disregard the shorter deadline because the motion was made within 120 days of the Note of Issue, and the merits of the motion warrant the Court’s consideration. Hernandez v. 620 West 189 Street Ltd. Partnership, 7 Misc.3d 198 (Sup. Ct., New York Co., 2005); and Florczyc v. Stahal, 6 Misc.3d 1011(a)(Sup. Ct., Kings Co., 2005). CONCLUSION WHEREFORE it is hereby: ORDERED that the motion is granted, and the action is dismissed; and it is further ORDERED that, within 20 days from entry of this order, defendant shall serve a copy of this order with notice of entry on the Clerk of the General Clerk’s Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh);]; and it is further ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further ORDERED that this constitutes the decision and order of this court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: April 18, 2023
