Majority
The plaintiffs’ basement was flooded after a heavy rainstorm. Their homeowner’s insurance policy, issued by the defendant, contained an exclusion for "loss caused directly or indirectly by * * * flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind”. In support of its motion for summary judgment, the defendant established that the loss was caused by surface water flowing down the incline of the backyard into the basement through the bottom of the basement door. Thus,
In opposition, the plaintiffs submitted an affirmation of their attorney, who had no personal knowledge of the loss. Moreover, the attorney’s contention that the loss was caused by either the wind or a falling object, which pierced a hole in the basement door, allowing rain to fall directly from the sky, through the door, into the basement, was based upon speculation and conjecture, and thus, was insufficient to defeat the defendant’s motion (see, Zuckerman v City of New York, 49 NY2d 557 , 563).
In light of our determination, we need not address the defendant’s remaining contention. Bracken, J. P., O’Brien, Goldstein and Florio, JJ., concur.
Cases cited
- Album Realty Corp. v. American Home Assurance Co. 80 NY2d 1008 p. 565
- Novick v. United Services Automobile Ass'n 225 AD2d 676 p. 565
- Casey v. General Accident Insurance 178 AD2d 1001 p. 565
- Zuckerman v. City of New York 49 NY2d 557 at 563 p. 565