Notice of Motion - Affidavits - Exhibits ............................................1-4

Answering Affidavits - Exhibits .........................................................5-8

Reply Affidavits ..................................................................................9-10

On June 7, 2008, the plaintiffs purchased a homeowner's insurance policy from defendant Tower Insurance, effective until June 7, 2009, which covered the "risk of direct loss to [covered property] if that loss is a physical loss to property," unless covered by a policy exclusion. In September 2008, defendant Darus-Salaam Masjid, New York, Inc. was engaged in constructing a mosque on property adjacent to the plaintiffs' property. The plaintiffs' property purportedly sustained damage as a result of the alleged negligent construction of the mosque.

The plaintiffs made a claim for insurance coverage, which was denied by defendant Tower Insurance Company of New York ("Tower Insurance") based upon the "faulty workmanship" exclusion contained in the policy. This exclusion provides that Tower Insurance [*2]would not cover loss to property caused by "faulty, inadequate or defective . . . workmanship, repair, construction . . . of part or all of any property whether on or off the residence premises." As a result, the plaintiffs commenced this action against Tower for wrongfully disclaiming coverage for the subject loss.

Defendant Tower Insurance has moved to dismiss the plaintiffs' complaint against it, pursuant to CPLR 3211(a)(1) and (7), based upon documentary evidence and failure to state a cause of action. Specifically, Tower Insurance moves for dismissal of the plaintiffs' complaint based upon the faulty workmanship policy exclusion it claims that the subject damage was caused by faulty work off the residence premises and, therefore, fails to qualify as a covered loss under the policy.

It is well-settled that insurers must provide for specific exclusions with clear and unmistakable language (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]). "Policy exclusions are given a strict and narrow construction, with any ambiguity resolved against the insurer" (Belt Painting Corp. v 516 Ins. Co., 100 NY2d 377 [2003]).

In determining this matter, the Court is guided by an earlier case, 242-44 East 77th Street, LLC v Greater New York Mut. Ins. Co., 31 AD3d 100 [1st Dept. 2006], cited and discussed by plaintiffs' counsel, Paul E. Kerson, Esq., in his well-written and precise opposing affirmation. The Appellate Division, in that case, 242-44 East 77th Street, LLC v Greater New York Mut. Ins. Co., involving a policy exclusion that is similar to the one at issue, determined that such "exclusion does not refer to external forces generated by the activities of third parties that cause damage to the insured premises" (Id.).

In so deciding, the appellate court stated that "the only reasonable explanation of the . . . exclusion is that it applies to negligent work by or on behalf of the insured . . ." (Id.). Applying the same construction to the policy at issue, the Court finds that the stated exclusion does not warrant a denial of insurance coverage herein.

Accordingly, the motion to dismiss the complaint is denied.

Dated: May 13, 2011

J.S.C.