Defendant Seneca Insurance Company moves for summary judgment dismissing all causes of action of the complaint and the cross-claims against it pursuant to CPLR 3212, and for an order granting it costs for defense of the allegedly frivolous cross-claims pursuant to CPLR 8303-a. Plaintiff opposes the motion and cross-moves for summary judgment as against defendant Empire Water Holdings LLC. Empire Water opposes the cross-motion.

Plaintiff The New York Open Center, Inc., engaged the services of defendant Empire Water Holdings, LLC ("Empire Water") to install a new water cooler at plaintiff's premises. During normal business hours on August 7, 2007, Empire Water removed the old water cooler and installed a new one. Empire did not use new PVC tubing to connect the new cooler to the existing water pipes. Instead, it used the old PVC tubing that was previously connected to the old water cooler.

When plaintiff's employees arrived for work the following morning, they discovered that the tubing had failed overnight, flooding the premises. [*2]

Shortly thereafter, plaintiff notified its insurer, defendant Seneca Insurance Company ("Seneca"), that plaintiff was making a claim for losses sustained as a result of water damage to business personal property. A copy of the property loss notice is attached to the affidavit of Gregory A. Crapanzano as exhibit 2. The Notice contains a "Description of Loss & Damage" that states as follows:

The insured received major water damage to their business property due to leakage from the water cooler located on the 3rd floor that was just installed. The pipe burst and leaked all night.

(Crapanzano Affidavit, exhibit 2, p. 1).

After inspecting the property, Seneca denied coverage, asserting that the property damage was not the result of a covered event as defined by the policy and was excluded.

Plaintiff commenced the instant action by filing and serving a summons and complaint in June 2008. The complaint alleges causes of action against Empire Water for negligence and breach of contract and against Seneca Insurance for failing and refusing to indemnify plaintiff for the loss. Plaintiff seeks damages in the sum of $25,000.

Empire Water filed a verified answer, raising nine affirmative defenses and asserting two cross-claims against Seneca. In turn, Seneca asserted two cross-claims against Empire Water.

Discussion

Since summary judgment "deprives the litigant of his day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of material issues of fact (Alvarez v. Prospect Hosp, 68 NY2d 320 [1986]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923[1993]).

Once a prima facie showing has been made, the burden of production shifts to the party opposing the motion to produce sufficient evidence, also in admissible form, of the existence of a material issue of fact requiring a trial of the action (Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

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 (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). If there is any doubt as to the existence of a triable issue, the motion should be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]; Stone v. Goodson, 8 NY2d 8 [1960]).

The insurance policy issued by Seneca Insurance contains an endorsement styled "Causes of Loss — Basic Form," which provides in pertinent part as follows:

A. Covered Causes of Loss

When Basic is shown in the Declarations, Covered Causes of Loss means the following:

1. Fire.

2. Lightning. [*3]

3. Explosion....

4. Windstorm or Hail....

5. Smoke causing sudden and accidental loss or damage...

6. Aircraft or Vehicles....

7. Riot or Civil Commotion....

8. Vandalism....

9. Sprinkler Leakage....

10. Sinkhole Collapse....

11. Volcanic Action....

(Affidavit of Gregory Crapanzano, exhibit 1).

The policy contains the following exclusion provision:

B. Exclusions

1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.

g. Water damage

(3) Water that backs up or overflows from a sewer, drain or sump: or

2. We will not pay for loss or damage caused by or resulting from:

b. Rupture or bursting of water pipes (other than Automatic Sprinkler Systems) unless caused by a Covered Cause of Loss.

c. Leakage or discharge of water or steam from any part of a system or appliance containing water or steam (other than an Automatic Sprinkler System), unless the leakage or discharge occurs because the system or appliance was damaged by a Covered Cause of Loss.

(Id.).

Defendant exhibits the sworn affidavit of Gregory A. Crapanzano, a claims adjuster employed by Seneca Insurance Company, in support of the motion for summary judgment. Mr. Crapanzano states that upon receipt of the claim, Seneca scheduled an appointment to inspect the property. He contends that Seneca was advised during the inspection that Empire Water Company had installed a water cooler on the third floor of plaintiff's premises. Mr. Crapanzano states further that Seneca was advised that the water line leading to the cooler failed and resulted in the water damage that was claimed by the insured. According to Mr. Crapanzano, Seneca relied upon the information in the notice of loss and its investigation in determining that the loss sustained by plaintiff was not a loss covered by the policy.

Plaintiff argues that it is still disputed that the proximate cause of the loss was vandalism, which is a named peril. [*4]

Empire Water opposes summary judgment. It relies on an investigation made by N. Terrence Walker, an adjuster employed by James H. Mason's Sons, Inc. Mr. Walker prepared a report after inspecting the site and photographing the PVC piping in issue. He concludes that the line had apparently split in two and was probably cut.

Walter Beebe, the President and a member of plaintiff's Board of Directors, states in a sworn affidavit that the new water cooler came with a new tube (Affidavit of Walter Beebe, para. 2). Mr. Beebe states that plaintiff requested that Empire Water's employee use the new tube to install the new unit rather than the old tube. According to Mr. Beebe, Empire Water's employee "refused to do so."

Empire Water exhibits a copy of its claims adjuster's inspection report to dispute the contention that its employee refused to use the new tubing. The claims adjuster stated in his report that while Empire Water's employee was installing the new cooler, plaintiff "was insisting that an existing water line servicing the former cooler be connected to a newly purchased cooler" (Empire Water's Affirmation in Opp., exhibit A, p. 3).

At oral argument held on July 31, 2009, it was brought to the court's attention that plaintiff had in its possession a security video that filmed the water cooler on the night of August 7 and the morning of August 8, 2007. The Court directed plaintiff to turn over copies of the footage to Empire Water and Seneca. The parties were given leave to file sur-reply papers after viewing the footage.

Mr. Beebe viewed the tapes from the security camera recording the event at issue and submitted an affidavit to the court dated August 7, 2009. He states that the cooler is in the direct vision of the monitor and is shown pressed against the wall. According to Mr. Beebe, the cleaning man is seen vacuuming the corridor, taking a drink of water from the cooler, and then shutting off the lights after midnight. He states further that the cleaning man then activated the alarm before leaving the building; that the remaining footage from that night showed the hallway dark for hours; and that no lights were turned on by anyone. Moreover, Mr. Beebe states that the security footage showed nobody else entering or leaving the building and that the building's burglar alarm was not set off during the night, which indicates that nobody broke in to vandalize the cooler. He notes, too, that nothing else was damaged.

Although Empire Water reviewed the filmed footage of the water cooler, it chose to submit only an affidavit from its adjuster dated August 5, 2009. He opines that the "line did not fail due to any natural cause and most probably was cut" (Walker Affidavit at p. 4, para. 22). The basis for his opinion was that the line had split in two after being cut by a sharp object.

After careful consideration, the court finds that Seneca Insurance Company has made out a prima facie case for summary judgment in its favor. The court finds further that plaintiff has failed to offer evidence sufficient to rebut Seneca's prima facie case, as the videotape of the premises is conclusive proof that the water cooler was neither vandalized nor tampered with in any manner whatsoever. Accordingly, the damage to plaintiff's property was not a covered cause of loss under the policy.

With respect to plaintiff's cross-motion for summary judgment, the court finds that plaintiff has established a prima facie case against defendant Empire Water Holdings, LLC, on the issue of liability. Defendant failed to present sufficient evidence to establish the existence of any genuine issue of fact. Mr. Walker's opinion does not raise an issue of fact. He is merely the [*5]adjuster who inspected the cooler several days after the accident. Mr. Walker does not state that he has training or expertise to proffer an opinion on the PVC piping. Moreover, Empire Water fails to refute the footage on the tape, which shows no vandalism in the vicinity of the water cooler on the night the piping failed, or that the water cooler was moved, permitting someone to cut the PVC piping.

Additionally, the claims adjuster's affidavit and inspection report that Empire Water relies upon to show that plaintiff insisted on the use of old PVC tubing has no probative value. Because the claims adjuster was not present at the premises when the water cooler was installed on August 7, 2007, it is clear that he does not possess any first-hand knowledge regarding specific statements that were allegedly made, or instructions that were allegedly given, at the time of the installation. Significantly, Empire Water does not submit an affidavit from the employee who hooked up the water cooler to the PVC piping.

On this record, the court finds that Empire Water was negligent in that it failed to take reasonable care by installing old PVC piping that failed when new PVC piping was at hand. Empire Water's negligence was a substantial factor in causing damage to plaintiff's property.

Finally, the court declines to award costs to defendant Seneca Insurance Company pursuant to CPLR 8303-a, for the cross-claims are clearly not frivolous.

For the above reasons, the motion for summary judgment of defendant Seneca Insurance Company is granted, and plaintiff's cross-motion for summary judgment as against defendant Empire Water Holdings LLC, is granted only with respect to the issue of liability.

The Clerk is directed to enter judgment accordingly.

The foregoing constitutes the decision and order of the court.

Date:October 30, 2009______________________________

New York, New YorkAnil C. Singh