The primary action involves a contract dated August 9, 2007 in which plaintiff J & S Commercial Construction, Inc. alleges it provided labor and materials to real property known as Field of Dreams Sports Complex which is owned by defendant Robert Cook and located at Route 5 in Schuyler, and that defendant Cook failed to pay $52,162.15. Plaintiff J & S Commercial Construction asserts three (3) causes of action: (1) breach of contract, (2) unjust enrichment, and (3) account stated. Third-party defendant Great American Insurance Company is the insurance carrier for Field of Dreams; third-party defendant Adirondack Bank is the mortgagee on the property; third-party defendant Brian Humiston d/b/a Play Safe Turf installed turf at the premises; and third-party defendant Air Temp Heating and Air Conditioning installed heating and ventilation at the [*2]premises.

Defendant Robert Cook interposed an Answer, Counterclaim and Amended Third-party Summons and Complaint, alleging various Affirmative Defenses and a Counterclaim against J & S Commercial Construction, as well as a Third-party Complaint alleging, inter alia, that third-party defendant Great American Insurance issued a policy for Field of Dreams' property and when the building sustained water damage, Great American failed to comply with policy requirements, refused to pay the claim, and acted in bad faith by failing to resolve the claim. Great American Insurance entered an Answer with 15 Affirmative Defenses, including a defense that the damage was caused by faulty workmanship which is an exclusion under the terms of the policy.

Third-party defendant Great American Insurance Company now seeks summary judgment dismissing all claims and cross-claims against it, based on exclusions in the policy and based on a claimed breach of policy conditions by third-party plaintiffs Robert Cook and Field of Dreams. In opposition to this motion, Robert Cook and Field of Dreams assert that they are entitled to coverage under this all-risk policy issued by Great American, relying on Montefiore Medical Center v. American Protection Insurance Company (226 F. Supp. 2d 470 [U.S. District Court, SDNY 9-27-02]), in which the Montefiore Court found there was a "fortuitous loss" and "an ensuing loss exception to the exclusion clause." This Court listened very carefully to oral argument of counsel and engaged counsel in active discussion during Motion Term. After again reviewing the papers submitted by counsel, and after due deliberation, this Court is not convinced that the reliance of Mr. Cook and Field of Dreams is justified. First and foremost, the plaintiff in Montefiore submitted affidavits from two (2) experts in response to that defendant's motion for summary judgment, in stark contrast to the case before this Court, where Mr. Cook and Field of Dreams submitted no expert affidavit or expert report whatsoever in response to two (2) expert affidavits and reports submitted by Great American. Great American has proven by two (2) engineering experts, as well as by documentary evidence and certain admissions made by Mr. Cook and Field of Dreams, that the cause of the water damage to his building was faulty workmanship by J & S Commercial Construction, Inc. and/or Play Safe Turf and Track LTD and/or Air Temp Heating and Air Conditioning, Inc., and that "faulty workmanship" is a specifically excluded peril under the policy in question. In opposition, Mr. Cook and Field of Dreams submitted nothing to overcome this expert evidence, except a statement from Mr. Cook that his engineers "will establish that the damages were fortuitous and immediate." The time to submit that proof was in response to Great American's motion for summary judgment, and Mr. Cook and Field of Dreams have failed in their proof. For this reason alone, Great American is entitled to summary judgment dismissing all claims and cross-claims against it. [*3]

Moreover, the Court in Montefiore held that under New York law, a plaintiff is entitled to coverage under a policy exception for "an ensuing loss," "only if and to the extent that it could prove that collateral or subsequent' damage occurred to other insured property as a result of the collapse. Here, the claimed loss is the collapse of the very portion of the building that is claimed to have been designed defectively" (supra at 479). The Court in Montefiore further held: "An ensuing loss provision does not cover loss caused by the excluded peril, but rather covers loss caused to other property wholly separate from the defective property itself" (supra at 479). All of the evidence before this Court, particularly the expert affidavits of Mr. Bova and Mr. Roman, demonstrate that "the water infiltration and excessive moisture load at the Field of Dreams Sports Complex building is the direct result of the design defects and faulty workmanship identified above." Such design defects and faulty workmanship are specific exclusions under this policy which entitle Great American to summary judgment dismissing all claims and cross-claims against it; and Mr. Cook and Field of Dreams submit no proof to overcome this entitlement.

For the reasons stated, Great American is entitled to summary judgment dismissing all claims and cross-claims against it. Having so decided, the Court does not need to reach the other claims raised by Great American concerning breach of policy conditions.

This constitutes the Decision of the Court. No costs are awarded to either party. Counsel for Great American Insurance Company is directed to submit an Order for signature with this original Decision appended thereto, after submitting a copy of same to opposing counsel for approval as to form.

Dated:January 22, 2010

/s/ Anthony F. Shaheen

Anthony F. Shaheen, J.S.C.