MCWG Obtains Summary Judgment for New Hampshire Ins. Co. based on the Wear And Tear Exclusion

In the case of 120 and 122-124 Lexington Avenue Corp. v. New Hampshire Insurance Company, Justice Milton A. Tingling recently granted New Hampshire's motion for summary judgment dismissing the complaint.  New Hampshire's motion was based on two grounds: 1) that the plaintiff was not an entity recognized by the State of New York, and therefore has no legal capacity to sue; and 2) the alleged loss is excluded under the specific terms of the Policy.  In support of its motion, New Hampshire included the sworn affidavit of its engineer in which he opined that the physical evidence establishes that the alleged loss resulted from long term exposure to the elements, i.e., wear and tear and deterioration.  In granting New Hampshire's motion, Justice Tingling held that New Hampshire made a prima facie showing of its entitlement to summary judgment based on the engineer's affidavit and the exclusions in the Policy, and that plaintiff failed to raise a triable issue of fact in dispute by failing to rebut the expert's testimony.   The case was defended by attorneys Kevin Buckley and Daniel O'Connell.