MCWG Obtains Summary Judgment Based on Late Notice, Loss Occurring Outside Policy Period, and Wear and Tear

Favellato v. Tower Ins. Co. of New York, Index No. 1021/08 (Sup. Ct., Kings Cty., March 30, 2011).  This litigation concerned plaintiffs' claim for damage to the walls of their two-story home that plaintiffs alleged was caused by a February 2006 snowstorm.  Tower denied the claim and plaintiffs sued.  Tower moved for summary judgment on three separate grounds.  First, plaintiffs breached the prompt notice of loss condition because they did not notify Tower of the alleged February loss until August 29, 2006.  Second, Tower's expert determined that the loss was caused by excluded causes of loss, i.e., wear and tear and faulty design.  Third, the evidence did not support plaintiffs' contention that a loss occurred while the policy was in force.  Although plaintiffs opposed the motion with affidavits contending that the loss was not discovered until shortly before it was reported, and affidavits from their "experts" that disputed the conclusions of Tower's expert, Justice Bernadette Bayne agreed with all of Tower's positions and granted it summary judgment.  The Court found as a matter of law that plaintiffs failed to provide "prompt notice" of the alleged loss, that the alleged loss was specifically excluded from coverage by the Policy's exclusions for "wear and tear" and "faulty design," and that plaintiffs failed to introduce any admissible evidence to support their contention that the loss occurred as a result of the February 2006 snowstorm.  Tower was represented by Kevin F. Buckley and Daniel M. O'Connell of Mound Cotton.