Ronald J. Papa et al.,, Appellants,v.Associated Indemnity Corporation et al., Respondents.BriefN.Y.June 20, 2017To be Argued by: ELIZABETH A. KRAENGEL (Time Requested: 15 Minutes) Appellate Division Docket No. CA 16-01136 Erie County Clerk’s Index No. 2012-600077 New York Supreme Court Appellate Division—Fourth Department RONALD J. PAPA and THERESA M. PAPA D/B/A MUIR LAKE ASSOCIATES, Plaintiffs-Respondents, – against – ASSOCIATED INDEMNITY CORPORATION and D&D POWER, INC., Defendants-Appellants. ____________________________________________ NATIONAL FIRE ADJUSTMENT CO., INC., Plaintiff-Respondent, – against – D&D POWER, INC., Defendant-Appellant. BRIEF FOR PLAINTIFFS-RESPONDENTS Of Counsel: Elizabeth A. Kraengel, Esq. Charles C. Ritter, Jr., Esq. DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP Attorneys for Plaintiffs-Respondents Ronald J. Papa and Theresa M. Pappa d/b/a Muir Lake Associates, and National Fire Adjustment Co. Inc. 701 Seneca Street, Suite 750 Buffalo, New York 14210 (716) 855-1111 TABLE OF CONTENTS Page TABLE OF AUTHORITIES........................ ....... ......................................... ....... ... ..... .......... n COUNTERST A TEMENT OF QUESTIONS PRESENTED ..... .... .............. ............. .. ......... . PRELIMINARY STATEMENT .... ...... ....... .... . ...... ... ..... .............. .. .... .. ... . .. .... .. ......... .... .. .... .. 2 COUNTERSTA TEMENT OF FACTS ........... ........ ..... .. ........ .... .. ..... ...... .... ............ ...... ..... ... 3 a. The Utility Pole Replacement ..... .... ...................... .............. ........... ....... ..... .. . . 3 b. The Loss ..... ... ........... ......... ........ ... ... .... .......... ....... ................ .... .. ...... .... ....... .. . 5 c. Repairs and Opportunities to Inspect.. ................ ...... ..... .. .... ............... ... ....... . 5 d. AIC's Attempt to Limit Its Obligations Under the Policy ... ................ .. .. ..... . 7 e. Procedural Background .. .... ......... .. ........... .. ....................................... ...... ...... . 8 ARGUMENT....... .. ..... ..... .. .. .. ...... ..... ............................................. ..... ................................... 9 POINT I THE POLICY IS AMBIGUOUS AS TO WHETHER THERE IS COVERAGE FOR THE LOSS AND ANY AMBIGUITY MUST BE CONSTRUED IN FAVOR OF THE INSURED .... ....... . A. Muir Lake established prima facie entitlement to coverage for the Loss .................. .................................... ...... . 1. The Premises is Covered Property pursuant to the Policy ........................... ........ ......... ...................... . 2. The Loss was fortuitous ................ .. ... ..... .. .... ............ . B. The Water Damage Exclusion and related Water Damage Endorsement are at best ambiguous and must be construed in favor of the insured and in favor 10 11 11 11 ofcoverage.............................................. .... ......... .............. .... 12 C. The wear and tear, rust and corrosion exclusion and related exception are ambiguous and therefore must be construed in favor of the insured and in favor of coverage .. . .. . . . . . . . . . . . . . . .. . .. . . . . . . . . . .. . . . .. . . . . . . . . . . .. . . . . . . . .. .. . . .. . . . . . .. . . . . . . . 15 D. The anti-concurrent causation clause does not eliminate the ambiguity in the Policy ... ... ............................. . 16 POINT II THE TRlAL COURT PROPERLY DENIED D&D' S MOTIONS FOR SUMMARY JUDGMENT BECAUSE D&D FAILED TO ESTABLISH THERE IS NO QUESTION OF MATERIAL FACT AS TO CAUSATION AND FORSEEABILITY .................. . A. D&D failed to establish that no material issue of fact 17 exists as to causation.............................................................. 18 1. Opinions exceed the scope of alleged expertise .. ...... 18 2. Opinions are speculative and based on non-existent "evidence" .. ......... ........... ... ... ..... .......... .. 20 B. Foreseeability is a question of fact for the jury ................ .... .. 25 CONCLUSION.................. ...... ........... .. .......................... ... ...... .. ....... ........... ....................... .. . 26 11 TABLE OF AUTHORITIES Cases: Page 242-44 E. 77th St., LLC v. Greater New York Mut. Ins. Co., 31 A.D.3d 100(lstDept. 2006) ...... ...... ......... ... .............. .... ...... ........ ...... ........... .. .. 10, 11,12 Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986) ........... .. .. ............................... .... ... ... .............. ....... .. ... ....... ................. 9 Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377 (2003) ................................ .... ..... .. ...... ..... .... .. ............. ....... .. .... .......... 12, 14 Boyce v. V azguez, 249 A.D.2d 724 (3d Dept. 1998) ... ....... .......... ................. ............. ... ....... .... ... ............ ... .. ... 18 Butler-Francis v. New York City Hous. Auth. , 38 A.D.3d 433 (1st Dept. 2007) ................ ....... .. ...... ... ..... .. .... ... ......... .... ... ..... .. .. ....... ... 23, 24 Clough v. Szymanski, 26 A.D.3d 894 (4th Dept. 2006) ..................................... ........ ... ...... ... ..... ... ... ..... ...... ... 23, 24 Crosland v. N.Y.C. Transit Auth., 68 N.Y.2d 165 (1986) ..... ... ....... ... .. ........................ ....... .. ....... ..... ..... .... .................. ........ ...... 9 Damas v. Valdes, 84 A.D.3d 87 (2d Dept. 2011) ............ ... ............ .. ... .............. ..... ..... ....... ........ ....... .... ..... .... 21 David Danzeisen Realty Corp. v. Continental Ins. Co., 170 A.D.2d 432 (2d Dept. 1991) ...... ... .. ....... ...... ..... ... .. ........................ ........ ....... .. ...... ...... 11 Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308 (1980) .... ..... ..... .......... ... ...... .. ............ ...... ........ .. ..... .................................... 25 Edwards v. Arlington Mall Assocs., 6 A.D.3d 1136 (4th Dept. 2004) ..... .................. ....... .. .... .. .......... ...... .... ... ... ... ... ................. .18 Gulf Ins. Co. v. Transatlantic Reinsurance Co., 13 A.D.3d 278 (1st Dept. 2004) ........... .............. ....... ....... .... .. ...... ...... ... ... ..... .... ..... ... ... ... .... . 9 Hileman v. Schmitt's Garage, Inc., 58 A.D.2d 1029 (4th Dept. 1977) ... .............. ..................... ............ .. ..... .. ......... .... ... .... . 19, 20 Hudson v. Allstate Ins. Co., 25 A.D.3d 654 (2d Dept. 2006) .............. ..... .. .... ....... .............. .... ... .... ........................ .. ..... . 14 Kritz v. Schum, 75 N.Y.2d 25 (1989) .... .. .... ...... ................ .. ... ....... ..... ........ ... ............................................ .. 25 Levy v. Cascades Operating Corp, 289 N.Y. 714 (1942) ... ... ......... ...... .................. ........ .. ...... ................. .. ...... .... ... .. .. ........... .... 25 Lichtenthal v. St. Mary's Church, 561 N.Y.S.2d 151 (4th Dept. 1990) .................... ..................... .. .. ... ............................. .. .. .. 18 Matter of Council of City of N.Y. v. Bloomberg, 6 N.Y.3d 380 (2006) ...... ... ... .. .. .. ... ...... .......... ..... ... .... ... .. ............. ......... ... ........... ................ 18 111 Monteleone v. Crow Con st. Co., 242 A.D.2d 135 (1st Dept. 1998) .. ...... ...... ... .... .. .. .. ..... ..... .. ....... ...... ......... .. ....... ..... .. ..... ... . .15 Mostow v. State Fann Insurance Companies, 88 N.Y.2d 321 (1996) .... .... ...... ..... ...... ..... ........ ......... .................... ............ .................... ..... 12 Muhammed v. Fitzpatrick, 91 A.D.3d 1353 (4th Dept. 2012) ......................................................................... .. ........... 23 Nonnon v . New York, 32 A.D.3d 91 (1st Dept. 2006), aff'd 9 N.Y.3d 825 (2007) .............................................. 23 Payant v. Imobersteg, 256 A.D.2d 702 (3d Dept. 1998) ......... .... ......... ........................ .... .... ........... .. .............. 19, 20 Platek v. Town ofHamburg, 24 N.Y.3d 688 (2015) ....... ........................................... .. ...... ..... ... .... ... .......... ...... ...... ... 14, 15 Przespo v. Garvey, 34 Misc. 3d 1240(A) (N.Y. Sup. Ct. , Erie Cnty. 2012) .................. ....... ...... ..... ........... 20, 24 Rivera v. New York City Transit Authority, 77 N.Y.2d 322 (1991) ................. ........... .......... ... .... ................... ........................................ 25 Schuster v. Dukann, 38 A.D.3d 1358 (4th Dept. 2007) ...................... ............... ......... ... ... ... ....... ....... ........ ... 21, 22 Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957) ... .... ... .... .... ....... ..... ..... .... ..... ........ .... .. ... ... ... .. ...... .. ... ... .......... .. .. .... .... ... 9 Simplexdiam, Inc. v. Brockbank, 283 A.D.2d 34 (1st Dept. 2001) ............ ................... ...... ......... .... ... ....... .............. ............... 10 Smith v. M.V. Woods Constr. Co., 309 A.D.2d 1155 (4th Dept. 2003) ............................ ... .............. ..... .. ........................ ........ 18 Travelers Indem. Co. v. ZeffDesign, 60 A.D.3d 453 (1st Dept. 2009) .... ..... ..... ........ .. ..... ......... .... ............... ................................ 10 United States Fid. & Guar. Co. v. Annunziata, 67 N.Y.2d 229 (1986) ......... ......... ...... ................. ............... .............. ... ......... ...... ... ........... .. 10 Wasserman v. Carella, 307 A.D.2d 225 (1st Dept. 2003) ...... .................................... ...... ............... 20, 21, 22, 23, 24 Wider v. Heritage Maintenance, Inc., 14 Misc. 3d 963 (Sup. Ct. 2007) .................................................................... .... ..... ... ........ 1 0 Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985) ............................................. .. .. .. .. ...... .... .. .... ..................... .... .... ... .. . 17 Other Authorities: 31 N.Y. Prac., New York Insurance Law§ 33:27 (2014-2015 ed.) ... ........ ....... ... ..... ... ............ ..... 15 CPLR 3212(b) ............. ...................... .. ................ .... .. ... ... ..... ... ...... ................................................... 9 IV COUNTERSTATEMENT OF QUESTIONS PRESENTED 1. Did the trial court properly deny Defendant-Appellant Associated Indemnity Corporation's motion for summary judgment, and grant Plaintiff-Respondents Ronald J. Papa and Theresa M. Papa d/b/a Muir Lake Associates' cross-motion for summary judgment as to liability, where the insurance policy is ambiguous as to whether coverage applies in this case? Answer: Yes. 2. Did the trial court properly deny Defendant-Appellant D&D Power, Inc. ' s motions for summary judgment where D&D Power, Inc. failed to establish that no material question of fact exists with respect to its alleged negligence in replacing the utility pole? Answer: Yes. - 1 - PRELIMINARY STATEMENT Plaintiff-Respondents Ronald J. Papa and Theresa M. Papa d/b/a Muir Lake Associates ("Muir Lake") submit this briefl) in opposition to Defendant-Associated Indemnity Corporation' s ("AIC") appeal of the Order and Judgment issued by the Honorable Diane Y. Devlin, J .S.C. , granted on February 22, 2016, and entered on February 23,2016 (the "Trial Court Order"), and 2) in opposition to Defendant-Appellant D&D Power Inc.'s ("D&D") consolidated appeals of the Trial Court Order. Plaintiff-Respondent National Fire Adjustment Co. Inc. ("NF A") also joins in this brief in in opposition to D&D' s appeal oftbe Trial Court Order. The Trial Court Order should be affirmed in all respects because it properly held that the subject insurance policy is ambiguous as to whether coverage applies in relation to the water damage exclusion and water damage endorsement. In addition, the policy provisions are also ambiguous as to whether the exclusion for wear and tear, rust and corrosion, and the related exception, apply. Accordingly, the Trial Court properly construed those ambiguities in favor of coverage and in favor of the insured as required by law. Before the trial court, D&D failed to establish that there is no material question of fact as to whether D&D was negligent in its replacement of the subject utility pole. Thus, the trial court properly denied S&S' s motions for summary judgment. It is respectfully requested that this Court affirm the Trial Court Order in all respects. - 2- COUNTER STATEMENT OF FACTS Muir Lake is a partnership between Ronald J. Papa and his mother, Theresa M. Papa. (R. 850). Muir Lake owns the real property commonly referred to as 1 NF A Park, in Amherst, New York (the "Premises"). (R. 851). At all relevant times NFA was and is a tenant ofMuir Lake at the Premises. (R. 851). Mr. Papa is also President of NFA. (R. 850). NFA was founded by Mr. Papa' s grandfather in 1922. (R. 851 ). In 1984, NF A moved its headquarters to the Premises. (R. 851 ). NF A also has an office in Canada, and is the largest public insurance adjusting firm in North America. (R. 851 ). NF A is in the business of providing public insurance adjusting services to insureds when they suffer a loss and represents the insured in dealing with the insured's insurance company in adjusting the loss. (R. 851 ). a. The Utility Pole Replacement On or about May 1, 20 I 0, D&D replaced a certain utility pole adjacent to the Premises along North Forest Road (the "Utility Pole"). (R. 851 ). The replacement of the Utility Pole involved the removal (from the Utility Pole) and reattachment of the electrical conduit (the "Conduit") that ran from the Utility Pole to the basement of the Premises. (R. 851). Approximately one month prior, Mr. Papa bad received a call that the Utility Pole replacement would be taking place and was notified that it would interrupt the electrical service to the Premises. Thereafter Mr. Papa notified NF A's IT director (Paul Urbanski) so he could prepare for the power interruption and arrange for an orderly shutdown ofNF A's computer system and restoration of the system once power was turned back on. (R. 851-52). Mr. Papa was present for approximately 20 minutes in the late morning/early afternoon during the time that D&D was replacing the Utility Pole and watched the replacement take place. - 3 - (R. 852). Mr. Papa was prompted to take photographs at that time because D&D had parked its trucks and heavy equipment all over the Premises parking lot (rather than accessing the Utility Pole from the street side) without having obtained permission to do so. (R. 852; see, R. 858). When the Utility Pole was in the process of being replaced, the overhead lines were not suspended by the pole itself, but rather by an overhead rig holding them up in the air while the pole replacement took place. (R. 852; see, R. 858). The photos taken by Mr. Papa depict the riser which runs up the Utility Pole and the wires that extend upward past the top end of the riser. (R. 852; see, R. 858). The photo depicts that the wire, which runs through the underground Conduit, and riser were not supported by D&D during the Utility Pole replacement. (R. 852; see, R. 858). Stephen Lockett, D&D's general foreman concerning the Utility Pole replacement testified at his deposition that D&D did nothing to support the riser and wires for approximately one and one-half hours during the course of the Utility Pole replacement. (R. 859-67). Mr. Lockett testified regarding the wires that come through the Conduit from the ground up along the pole that during the pole replacement, that they are supported "by themselves" (R. 860) that "the ground is supporting the weight of the cable" (R. 866) and that there is nothing else supporting those cables, which come up through the riser 6-8 feet in height, during the pole replacement (R. 866). Mr. Lockett also stated that the time period during which the cables and riser were unsupported (by anything other than "themselves" or "the ground") was an hour to an hour and a half. (R. 867). Shortly after Mr. Papa came to learn that the water infiltrated the basement through the broken Conduit, Mr. Papa was told by D&D that they supported the cables that extended from the Conduit and up the riser during the Utility Pole replacement. (R.853). Mr. Lockett' s deposition testimony (R. 859-867) and the photograph of the unsupported cables (R. 858) support that is not true. - 4- b. The Loss On or about June 5-6, 2010, the area where the Premises is located received over 2 inches of rainfall. (R. 853; 868-71). On June 6, 2010, at approximately 2:00a.m. Pacific Coast Time (Mr. Papa was in California), Mr. Papa was alerted to the fact that there was a massive quantity of water gushing into the basement of the Premises. (R. 853). NF A' s office manager, Angelo Puccio, was present that morning and observed the conditions first hand. (R. 957). Mr. Puccio observed water flowing through the hallway of the electrical room in the basement of the Premises, and the water also infiltrated the adjacent storage room, Judge Sherwood Bestry's office (a tenant at the Premises), NFA's estimator' s area, and adjacent hallway towards the elevator and the HV AC room. (R. 957). Mr. Puccio highlighted the affected areas on a map of the basement (R. 957, 959), and also took a video recording that depicts the water in the basement of the Premises swirling into the drain punch in the concrete floor to alleviate the water from spreading. (R. 957, 960). c. Repairs and Opportunities to Inspect A temporary sump pump was installed at the Premises to keep the water under control in the event they received another heavy rainfall before the broken Conduit could be repaired. (R. 853). Frey Electric performed the repairs to the Conduit on or about August 24, 2010, which included disconnecting and reconnecting power. (R. 853). The parties were advised of same in advance, and were provided an opportunity to inspect the Conduit. (R. 853, 872-5). A photograph of the Conduit upon excavation in August 2010 depicts that there were two conduits in the same area, but only one was broken. (R. 884). At the time of the repair, it appeared that there was enough torque/stress damage caused to the unruptured Conduit that it warranted replacement as well. (R. 854). Mr. Keith Allen visited - 5 - the Premises on August 21, 2010, and August 24, 2010, and excavated the site of the Conduit at the base of the Utility Pole and observed firsthand the Conduit and surrounding area upon performing the repairs. (R. 854, 885-88). Notably, Mr. Allen stated: I discovered that the pipe in question was separate off of the pipe in the ground- the metal riser pipe that we call it- the one that goes up the actual telephone pole- has a 90·degree bend on the bottom of it, and that's the part that's in the actual ground. That's attached to the PVC pipe that goes to your building. That pipe the 90 part was ripped off and separated from the actual PVC pipe that was in the ground." (R. 886). Mr. Allen also observed two conduits at the time he excavated the area and recommended that the unbroken conduit be replaced as well, reasoning that it was "stressed and bent at the coupling and it probably will not last the winter." (R. 888). In addition, George Pearlman prepared a report dated July 22, 2010, and letter dated August 25, 2010, providing annotated photographs of the conduit damage upon excavation. (R. 890-903). Mr. Pearlman was the architect for the original construction of the building and he inspected the damaged areas on or about August 24,2010. (R. 892). Following the damage, Mr. Papa had the opportunity to observe the electrical box in the basement where the Conduit entered the Premises, and noticed that there was some rust around the electrical box that appeared to have been there for some time. (R. 855). At no point had NF A/Muir Lake ever experienced any amount of water in the Premises basement that would give any cause for concern. (R. 855). There is no evidence of any rushing, pooling or sitting water ever having existed in the basement of the Premises. (R. 855). And, NF A/Muir Lake certainly had never experienced any water infiltration of the significant magnitude that was experienced on June 5-6, 2010. (R. 855). - 6- Mr. Papa has no personal knowledge of when the rust on the electrical box appeared or the source of what caused it. (R. 855). Lastly, Mr. Lockett testified that at the time the Utility Pole was replaced, he observed (below ground level) the top portion of the Conduit, elbow and coupling (where the straight part of the conduit is connected to the curved part). (R. 863). When asked whether at any point during the pole replacement he observed any conditions of deterioration or corrosion or anything that would give him pause with respect to the conduit, he answered that "There was no concern. There was rust, nothing out of the ordinary that would cause us to be concerned." (R. 864). d. AIC's Attempt to Limit Its Obligations Under the Policy Muir Lake, at all relevant times, was insured by AIC under a policy of insurance Policy No. AZC 80826051 (the "Policy"). (R. 856; 641-842). On September 14, 2010, Mr. Papa met in St. Louis with AIC representatives Corey Jones and Brian Lynch, at AIC' s office, to discuss the claim. (R. 856). The meeting took place at Mr. Papa' s request in efforts to enlighten AIC with respect to the facts underlying the claim. (R. 856). On or about September 15, AIC sent Muir Lake a check for $25,000. (R. 856, 904). On or about October 12, 2010, AIC sent Muir Lake a coverage letter (c/o NF A) stating that in its opinion the Loss was covered by the Water Damage Endorsement which has a limit of $25,000. (R. 907-10). At no time did Muir Lake ever agree with AIC that the Loss was subject of the Water Damage Endorsement. (R. 856). Rather, Muir Lake has disputed this ever since first being advised of AIC's position. (R. 856, 911-12). - 7- e. Procedural Background Muir Lake's complaint, filed in January 2012, alleges causes of action for declaratory relief and breach of the Policy as against AIC and alleging a cause of action for negligence against D&D. (R. 70-77). NFA also filed an action in January 2012 alleging a cause of action for negligence against D&D. (R. 297-302). The parties engaged in discovery, and in December 2015 D&D filed a motion for summary judgment seeking to dismiss the complaints against it in both actions. (R. 45-6; 272-3). Shortly thereafter, AIC filed a motion for summary judgment seeking a declaration that it had not breached the policy and dismissal of Muir Lake's complaint. (R. 330-1). Muir Lake cross-moved for summary judgment against AIC on its second cause of action for breach of the Policy. (R. 843-44). In support of its motion, D&D submitted an affidavit of Mohan Devgun. (R. 227-47). Mr. Devgun is a purported metallurgist (R. 228-29), yet D&D submits speculative assertions regarding fields well outside of his realm of expertise, including, without limitation, dynamics, forces, electrical systems, replacement of utility poles, and soil composition and resistivity. (R. 237, 240, 244). Mr. Devgun' s affidavit also lacks a sufficient factual foundation to support his proffered conclusions. The trial court denied AIC and D&D' s motions for summary judgment and granted Muir Lake' s motion for summary judgment against AIC with respect to liability. (R. 40-44). The instant appeals ensued, and were consolidated by stipulation. (R. 1-3). - 8 - ARGUMENT The trial court properly denied AIC and D&D' s motions for summary judgment. A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter oflaw in directing judgment in favor of any party." CPLR 3212(b). As stated by the New York Court of Appeals: [T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact .... Failure to make such a prima facie showing requires a denial of the motion, regardless ofthe sufficiency of opposing papers .... Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). Summary judgment is a "drastic remedy [which] should not be granted where there is any doubt as to the existence of [material and triable issues of fact] , or where the issue is 'arguable."' Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957) (emphasis added). In cases such as the instant matter, the appellate court will apply a de novo standard of review to the lower court's interpretation of a contract provision. Gulf Ins. Co. v. Transatlantic Reinsurance Co., 13 A.D.3d 278, 279 (1st Dept. 2004). Moreover, in determining a motion for summary judgment, both in the lower court and on appeal, all facts and inferences must be viewed in a light most favorable to the non-moving party. See Crosland v. N.Y.C. Transit Auth., 68 N.Y.2d 165, FN2 (1986). - 9 - In addition, the trial court also properly granted Muir Lake's motion for summary judgment as to liability against AIC because the provisions of the Policy are ambiguous as to whether coverage applies in this case and are therefore properly construed in favor of the insured and in favor of coverage. Thus, this Court should affirm the Trial Court Order in all respects. POINT I THE POLICY IS AMBIGUOUS AS TO WHETHER THERE IS COVERAGE FOR THE LOSS AND ANY AMBIGUITY MUST BE CONSTRUED IN FAVOR OF THE INSURED An insurance policy must be interpreted to give clear and unambiguous provisions their plain and ordinary meaning. See United States Fid. & Guar. Co. v. Annunziata, 67 N.Y.2d 229, 232 (1986). However, "[t]he policy must, of course, be construed in favor of the insured, and ambiguities, if any, are to be resolved in the insured's favor and against the insurer." ld. Where an insured seeks coverage under an all-risk insurance policy, it establishes a prima facie case for coverage of damage to its property by demonstrating that the damage suffered was of covered property, Wider v. Heritage Maintenance, Inc., 14 Misc. 3d 963 (Sup. Ct. 2007), and that the loss was fortuitous. Simplexdiam, Inc. v. Brockbank, 283 A.D.2d 34 (1st Dept. 2001). The burden then shifts to the carrier, who will not be permitted to avoid coverage unless it can demonstrate that an interpretation of the policy favoring exclusion of the loss is the only reasonable reading of the relevant terms of an applicable exclusion. Travelers Indem. Co. v. Zeff Design, 60 A.D.3d 453 (1st Dept. 2009); 242-44 E. 77th St., LLC v. Greater New York Mut. Ins. Co., 31 A.D.3d 100, 103 (1st Dept. 2006). Under these standards, AIC's motion for summary judgment was properly denied and Muir Lake's summary judgment motion as to liability was properly granted. - 10- A. Muir Lake established prima facie entitlement to coverage for the Loss. 1. The Premises is Covered Property pursuant to the Policy. There is no question that the Premises owned by Muir Lake is covered property pursuant to the Policy. The Policy' s General Declarations identifies Muir Lake as an insured and identifies the Premises as a location to which the coverages apply. (R. 726-27). Accordingly, Muir Lake satisfies the requirement that the damaged property constitutes covered property under the Policy. 2. The Loss was fortuitous. The Policy is of the kind commonly known as an "all risk" policy. "When parties enter into an 'all risk' policy, such as is involved here, covering 'direct physical loss of or damage to Covered Property at the premises ... caused by or resulting from any Covered Cause of Loss,' they obviously intend to cover all losses except those specifically excluded." 242-44 E. 77th St. , LLC v. Greater New York Mut. Ins. Co. , 31 A.D.3d 100, 105 (1st Dept. 2006). Thus, whether or not D&D's negligence in fact caused the loss- which is a separate issue in this action- AIC is liable under the Policy to provide Muir Lake with coverage. In David Danzeisen Realty Corp. v. Continental Ins. Co., 170 A.D.2d 432 (2d Dept. 1991), the plaintiff owned a building in which the roof "slid" on the frame of the building. The plaintiff filed an insurance claim and the insurance company denied coverage on the ground that the roof sliding was the result ofun-repaired damage from a fire in 1980. The court ruled that the plaintiff was entitled to insurance coverage. Because the sliding roof was beyond the control of either of the parties, it was fortuitous within the meaning of an all-risk policy. Further, even if the plaintiff were negligent, negligence is not a defense to coverage under an all-risk policy. Here, analogous to David Danzeisen Realty Corp., Muir Lake has established prima facie entitlement to coverage as a matter of law because it is undisputed that it suffered a fortuitous loss. - 11 - The Policy protects Muir Lake from "Covered Causes Of Loss", defined under the Policy (Covered Causes of Loss as "RISKS OF DIRECT PHYSICAL LOSS unless the loss is: a. Excluded in Section B., Exclusions; or b. Limited in Paragraph A.4., Limitations; that follow." (R. 734). The Covered Causes of Loss provision does not list any exceptions or limitations respecting damage caused by a broken conduit. Accordingly, Muir Lake establishes prima facie entitlement to coverage for the Loss under the Policy as a matter of law. B. The Water Damage Exclusion and related Water Damage Endorsement are at best ambiguous and must be construed in favor of the insured and in favor of coverage. Since Muir Lake has established prima facie entitlement to coverage under the Policy, AIC bears the heavy burden to demonstrate that an exclusion in the Policy applies. 242-44 E. 77th St., LLC v. Greater New York Mut. Ins. Co., 31 A.D.3d 100, 103 (1st Dept. 2006). "[P]olicy exclusions are given a strict and narrow construction, with any ambiguity resolved against the insurer." Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377, 383 (2003). In reviewing whether an ambiguity must be construed against the insurer who drafted the policy, the test to determine whether the policy is ambiguous focuses on the reasonable expectations of the average insured upon reading the policy. See Mostow v. State Farm Insurance Companies, 88 N.Y.2d 321 (1996). This rule requiring that ambiguities be resolved in favor of the insured is enforced even more strictly when the language at issue purports to limit the insurer's liability. Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377 (2003). It is undisputed that the broken Conduit allowed water to infiltrate the basement Premises and damaged Muir Lake's property. Nevertheless, AIC argues that the Water Damage Exclusion and the Water Damage Endorsement limit AIC's liability to the $25,000 previously paid, contending that the relevant Policy provisions are unambiguous. (See AIC App. Br. at 10-11 ). - 12- The Water Damage Exclusion provides that AIC will not pay for loss or damage caused directly or indirectly by: f. Water (R. 745-46). (1) Flood, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not; (2) Surface water; (3) Mudslide or mudflow; (4) Water that backs up from a sewer or drain; or ( 5) Water under the ground surface pressing on, or flowing or seeping through; (a) Foundations, walls, floors or paved surfaces; (b) Basements, whether paved or not; or (c) Doors, windows or other openings. But if loss or damage by fire, explosion or sprinkler leakage results, we will pay for that resulting loss or damage. The Water Damage Endorsement (which limits coverage thereunder to $25,000) states~ This endorsement modifies Section 1- Property Coverages, Part B.- Exclusions, paragraph F. Water. 4 . Water that backs up from a sewer or drain; or 5. Water under the ground surface pressing on, flowing or seeping through: a. Foundations, walls, floors or paved surfaces; b. Basements, whether paved or not; or c. Doors, windows or other openings. Is hereby deleted. All other terms and conditions of this policy remain the same. (R. 708). The Water Damage Endorsement is also ambiguous as it does not alter the entirety of the Water Damage exclusion, merely states that subsections (4) and (5) are deleted while failing to articulate how coverage is to be construed. Based on the language contained in the Water Damage Exclusion, it is questionable whether it even applies in the first instance. While the loss was occasioned by water, it resulted from the breaking of the Conduit. There is no evidence that the water came through a "foundation or wall" as specified in the Water Damage Exclusion - rather, it entered through the broken - 13 - Conduit. AIC argues that the term "other openings" contained in the Water Damage Exclusion applies to bar coverage in the instant case. (AIC App. Br. 10-11). However, the term "other openings" remains ambiguous as to whether coverage applies in this case because the Conduit is not an "opening", but rather part of the electrical system at the Premises. Because the Water Damage Exclusion is ambiguous as to whether water entering the building through a broken conduit is intended to be excluded from coverage, or subject to the Water Damage Endorsement, it is black letter insurance contract law that this ambiguity in the Policy be construed in favor of the insured and in favor of coverage. Belt Painting Com. v. TIG Ins. Co. , 100 N.Y.2d 377, 383 (2003). For the insurer to prevail it must demonstrate not only that its interpretation is reasonable but that it is the only fair interpretation. See Hudson v. Allstate Ins. Co. , 25 A.D.3d 654 (2d Dept. 2006) (emphasis added) (conflict between policy provisions construed in favor of insured over damage caused by bursting of water supply pipe) . AIC fails to establish its interpretation is the only fair interpretation. In its argument to the trial court, AIC contended that "the Appellate Courts across the State have failed to find ambiguity in the clause at issue." (R. 994). Before the trial court, and now on this appeal, however, AlC fails to cite a single case that involves the Water Damage Exclusion and/or the related Water Damage Endorsement at issue in the case at hand. The case law cited by AIC does not support the proposition that courts have failed to find ambiguity in the subject exclusion, or that they have even been asked to do so. For example, in Platek v. Town of Hamburg, 24 N .Y.3d 688, 691 (2015) (cited by AIC before the trial court at R. 993; AIC App. Br. 13), the homeowner' s insurance policy excluded coverage for damage caused by " '4. Water . .. on or below the surface of the ground, regardless of its source[,] [including] water . . . which exerts pressure on, or flows, seeps or leaks through any - 14- part of the residence premises.[] ' ... 'We do cover sudden and accidental direct physical loss caused by fire, explosion or theft resulting from items 1 through 4 listed above. '" Platek is distinguishable as the language therein was clear and unambiguous, which stands in stark contrast to the Policy language at issue in the instant case. Accordingly, because the Water Damage Exclusion and related Water Damage Endorsement are at best ambiguous, the trial court properly denied AIC's motion for summary judgment and granted Muir Lake's cross-motion for summary judgment against AIC as to liability for breach of the Policy. C. The wear and tear, rust and corrosion exclusion and related exception are ambiguous and therefore must be construed in favor of the insured and in favor of coverage. An insurer bears the burden of proving an affirmative defense to, or in avoidance of, an action on an insurance policy. See 31 N.Y. Prac., New York Insurance Law § 33:27 (2014-2015 ed.). The insurer must establish that the exclusion " is subject to no other reasonable interpretation, and applies in the particular case." Monteleone v. Crow Const. Co .. 242 A.D.2d 135 (1st Dept. 1998). On this appeal, AIC argues in the alternative that there is a question of fact as to whether wear and tear, rust or corrosion of the Conduit caused the loss. (AIC App. Br. 14-16). However, this exclusion is also ambiguous and must be construed in favor of the insured and in favor of coverage. This exclusion in the Policy states: 2. We will not pay for the loss or damage caused by or resulting from any of the following. Unless otherwise stated, the following applies to all Section 1-Coverages: *** e. Wear and Tear; f. Rust, corrosion, fungus, mold, decay, deterioration, hidden or latent defect or any quality in property that causes it to damage or destroy itself; * * * h. Settling, cracking, shrinking or expansion; - 15- * * * But if the loss or damage by the specified causes of loss results, we will pay for that resulting loss or damage. (R. 746). The Policy defines "specified causes ofloss" as: Fire; lightening; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from dire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice or sleet; water damage. * * * c. Water damage means accidental discharge or leakage of water or steam as the direct result of the breaking or cracking or any part of a system or appliance containing water or steam. (R. 767-68). This exception to the exclusion for wear and tear, rust or corrosion supports coverage for the Loss or at least is ambiguous with respect to whether coverage applies in the instant case. Certainly, in this case there was an "accidental discharge or leakage of water" as provided for in the exception. And, the water was contained within the Conduit, which is "part of a system" - the electrical system at the Premises and as a result of the ruptured conduit that system contained water. D. The anti-concurrent causation clause does not eliminate the ambiguity in the Policy. AIC contends that the Policy ' s anti-concurrent causation clause somehow eliminates the ambiguity in the Policy. (AIC App. Br. 11-12). It does not. There is no question in this case that Muir Lake suffered water damage. However, as detailed above, the Policy's Water Damage Exclusion is ambiguous. The fact that the Policy contains an anti-concurrent causation clause in no way serves to eliminate the ambiguity in the Policy because the anti-concurrent causation - 16- clause is dependent upon the exclusionary language in the Policy being clear and unambiguous - which it is not in this case. Similarly, AIC argues that water was the "dominant cause" of Muir Lake's damages and therefore coverage is excluded under the Policy. (AIC App. Br. 12-15). This argument also fails because it too requires the assumption that the Water Damage Exclusion is unambiguous - which it is not. Accordingly, the trial court properly denied AIC' s motion for summary judgment and properly granted Muir Lake's motion for summary judgment against AIC as to liability. POINTD THE TRIAL COURT PROPERLY DENIED D&D'S MOTIONS FOR SUMMARY JUDGMENT BECAUSE D&D FAILED TO ESTABLISH THERE IS NO QUESTION OF MATERIAL FACT AS TO CAUSATION AND FORESEEABILITY ''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 to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (emphasis added). D&D argues that Plaintiffs have failed to create a triable issue of fact. (D&D App. Br. 15-21). However, the real issue is that Plaintiffs never had the burden to demonstrate a triable issue of fact because the burden never shifted to Plaintiffs as D&D failed to satisfy its initial prima facie burden. As discussed below, D&D failed to tender sufficient evidence to eliminate all material issues of fact from this case, in particular as to foreseeability and causation. As such, the Trial Court Order properly denied D&D's motion for summary judgment, and should be affirmed. - 17- A. D&D failed to establish that no material issue of fact exists as to causation. D&D ignores the fact that it did not satisfy its prima facie burden by making conclusory assertions and erroneously trying to place the initial burden on Muir Lake. However, all facts and inferences must be viewed in a light most favorable to the non-moving party, Matter of Council of City ofN.Y. v. Bloomberg, 6 N.Y.3d 380, 401 (2006); see Boyce v. Vazquez, 249 A.D.2d 724, 726 (3d Dept. 1998), and a party does not demonstrate its entitlement to summary judgment where it merely submits bare conclusory allegations, see Lichtenthal v. St. Mary's Church, 561 N.Y.S.2d 151 , 151 (4th Dept. 1990). Importantly, this Court has established that "a moving party must affirmatively demonstrate the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponents proof." Edwards v. Arlington Mall Assocs., 6 A.D.3d 1136, 1137 (4th Dept. 2004). D&D attempts to shift the focus to Plaintiffs' proof despite the fact that D&D failed to affirmatively demonstrate the merits of its own motion. D&D's reliance on the testimony of its expert, Mr. Devgun, as "sufficient" to shift the burden to Plaintiff is conclusory and factually baseless. Mr. Devgun's opinions are insufficient to demonstrate the merits of D&D' s motion because ( 1) he rendered opinions that exceeded the scope of his alleged expertise, and (2) the opinions he offered are speculative and based on non-existent "evidence." 1. Opinions exceed the scope of alleged expertise "'An expert witness must possess the requisite skill, training, knowledge or experience to ensure that an opinion rendered is reliable. ' Thus, for example, a medical expert is not qualified as a ballistics expert, and a metaUurgist may not testify on dynamics and forces." Smith v. M.V. Woods Constr. Co., 309 A.D.2d 1155 (4th Dept. 2003) (emphasis added) (citations omitted). Where, as here, an expert renders opinions that exceed the scope of his or her expertise, such - 18- opinions are not admissible. See, e.g. , Payant v. Imobersteg, 256 A.D.2d 702 (3d Dept. 1998). Mr. Devgun is purportedly a metallurgist. (See R. 228-29). He does not purport to have any experience or expertise in electrical systems, replacing utility poles, the field of dynamics (the branch of mechanics that deals with the motion and equilibrium of systems under the action of forces, usually from outside the system), or the field of soils, nor was he present to inspect the conduit system on site at any time. On May 5, 2015, Mr. Devgun inspected the elbow segment of conduit - alk/a the sweep - that had been saved by Muir Lake - almost five years after it was damaged by D&D. (R. 229). Mr. Devgun did not perform any testing on the conduit, only a visual inspection. (R. 227-47). In Hileman v. Schmitt' s Garage, Inc., 58 A.D.2d 1029, 1029-30 (4th Dept. 1977), the plaintiff's expert's specialty was physical metallurgy, and the trial court sustained the defendant's objections to questions calling for opinions as to what caused the wheel to fall off a vehicle. On appeal, this Court affirmed, holding that the witness was qualified in metallurgy but not dynamics, and thus the opinions asked ofhim had to be in his field. ld. In the instant case, D&D provides Mr. Devgun' s conclusory opinions which are blatantly outside the scope of the field ofhis alleged expertise, including without limitation: • "D&D 's work did not cause the damage to the conduit sweep that I examined on May 5, 201 5" (R. 237). Mr. Devgun has no expertise in electrical systems or utility pole replacements. • "The soil in the area of Amherst, New York, where the conduit was located has low soil resistivity" (R. 240). However, Mr. Devgun is not a soils expert and performed no testing of the soils in the immediate area of the conduit in 20 I 0, or at anytime thereafter. • "The conduit sweep did not separate from the PVC conduit due to stresses placed on it during the pole replacement operation." (R. 244). Mr. Devgun is not an expert in the field of dynamics and even if he were, he has offered no evidence or information as to the amount of stress that was placed on the conduit by D&D's failure to support the wires, let alone an opinion as to the threshold of stress that the - 19 - conduit could tolerate. Such testimony exceeds the scope of Mr. Devgun's expertise as a metallurgist. Like the expert in Hileman, where the Court held that the expert could not offer opinions outside his field, Mr. Devgun's opinions about D&D's work, soil conditions, and stresses from external forces are clearly outside his scope of purported expertise, and are thus inadmissible. See Hileman, 58 A.D.2d at 1029-30. Moreover, the instant case is directly analogous to Hileman as to the expert's inability to opine as to the ultimate conclusion of the cause of damage. In Hileman, this Court held that the metallurgist's opinion as to the causation of a car wheel's detachment from the car was inadmissible because the metallurgist was not an expert in dynamics. ld. Here, Mr. Devgun is also a metallurgist who is not an expert in dynamics, and as such cannot opine as to what caused the conduit to break. He is not qualified to provide opinions, nor does he purport to have any personal or professional knowledge, with respect to relevant industry standards concerning D&D's work, the soil conditions, or the external stresses placed on the conduit during the utility pole replacement. Accordingly, Mr. Devgun' s opinions exceed the scope ofhis expertise and are not admissible. See Payant, 256 A.D.2d 702. Therefore, D&D can only proffer Mr. Devgun's opinion to support that corrosion existed on the conduit, but cannot opine as to the effect, or purported lack thereof, ofD&D's failure to support the wires. 2. Opinions are speculative and based on non-existent "evidence" "Until the movant establishes its entitlement to judgment as a matter of law, the burden does not shift to the opposing party to raise an issue of fact and the motion must be denied." Przespo v. Garvey, 34 Misc. 3d 1240(A) (N.Y. Sup. Ct., Erie Cnty. 2012). "The failure to make such a prima facie showing requires the denial of the motion, and renders the sufficiency of plaintiff's opposition immaterial." Wasserman v. Carella, 307 A.D.2d 225, 226 (1st Dept. 2003). -20- The failure of an expert to (a) submit sufficient factual basis for his/her opinions and (b) reconcile those opinions with the facts of the case "renders [the] expert opinion in support of summary judgment speculative, conclusory, and insufficient to meet plaintiffs prima facie burden of proof on causation." Damas v. Valdes, 84 A.D.3d 87, 94 (2d Dept. 2011). New York case law is clear that an expert's opinion cannot be baseless, but must be supported by facts and evidence. In Schuster v. Dukarm, 38 A.D.3d 1358 (4th Dept. 2007), this Court held that a meteorologist' s affidavit opinion that there was a storm in progress when the plaintiff fell on ice and snow was insufficient where it was not accompanied by the meteorological data on which the opinion was based. In Wasserman, a medical malpractice action, the First Department held that a medical expert' s opinion was insufficient to satisfy the movant' s motion for summary judgment where the expert failed to explain the basis, i.e. "why," surgical intervention or the use of a cast were not viable alternatives. 307 A.D.2d at 226. The expert "merely state[ d) that the use of crutches were appropriate, with no elaboration." ld. In the instant case, Mr. Devgun' s opinions in his affidavit are speculative and based on non-existent evidence. For example, Mr. Devgun opines that "road de-icing salts also are a factor in the location where the subject conduit was installed." (R. 241). However, there is no evidence in the record that road de-icing salts were used in the proximity of the Utility Pole or Conduit, when the damage occurred, or with what frequency and what specific effect they played on the Conduit. Thus, such an opinion is sheer speculation and not admissible. Additionally, Mr. Devgun opines that "the area of the break was encased in at least two feet of dirt at the time of the pole replacement. It was held in place by the weight of the soil, and did not move during the pole replacement." (R. 245). Mr. Devgun does not offer any basis for his - 21 - opinion as there is no evidence that the conduit "did not move" during the pole replacement. Further, Mr. Devgun was not present during the pole replacement, and thus his statement to this effect is purely speculative. Moreover, Mr. Devgun fails to specify the level or extent of corrosion that would need to be present to produce the deluge of water that entered Muir Lake's basement. No causation or correlation is established by his opinions that would serve to eliminate any question of material fact and does not support the drastic remedy of summary judgment. Other than his opinion that the conduit he inspected is a galvanized metal pipe which appeared to be corroded in certain areas at the time of his inspection on May 5, 2015, the balance of his affidavit is speculative in nature and a regurgitation ofD&D's conclusory position that the conduit failed due to corrosion. The instant case is similar to this Court's holding in Schuster, where a meteorologist' s affidavit opinion that there was a storm in progress when the plaintiff fell on ice and snow was insufficient where it was not accompanied by the meteorological data on which the opinion was based. See 38 A.D.3d 1358. Here, Mr. Devgun' s affidavit is similarly deficient in that no data accompanies it to corroborate the speculative condition of the soils or the forces exerted upon the conduit at the time of the utility pole replacement. As the affidavit of Ronald J. Papa (seeR. 890-903) establishes, there was a massive break in the conduit through which water infiltrated the conduit (and consequently Muir Lake's building). Thus, there is a question of fact for the jury to decide as to whether the condition of the Conduit as alleged by D&D, or whether D&D's negligence in failing to support the cables extending from the Conduit during the Utility Pole replacement as alleged by Muir Lake and NF A, caused Plaintiffs' damages. Furthermore, the instant case is similar to Wasserman where the First Department held that a medical expert' s opinion was insufficient to satisfy the movant' s motion for summary judgment -22- where the expert failed to explain why surgical intervention or the use of a cast were not viable alternatives, but "merely state[ d) that the use of crutches were appropriate, with no elaboration." 307 A.D.2d at 226. Mr. Devgun fails to explain why the force of the unsupported wires could not cause damage to the conduit and "merely states" that the corrosion was the cause of the damage to the conduit "with no elaboration." See id. Mr. Devgun also has not established specific reliability of the procedures he utilized for the "inspection" of the conduit. The burden of providing general acceptance of an expert' s methodology rests upon the party offering the disputed expert testimony. Nonnon v. New York, 32 A.D.3d, 91 (1st Dept. 2006), affd 9 N.Y.3d 825 (2007). Mr. Devgun did not (a) perform any testing of the Conduit (R. 229-30), (b) provide any information whatsoever as to the amount of force that was exerted on the Conduit to cause it to fail (whether it failed due to corrosion or D&D' s negligence), or (c) explain how or when the failure that caused the massive water infiltration on June 6, 2010, actually occurred. The procedures ofhis "inspection" fail to establish a foundation for the acceptance of his conclusory and speculative opinions. See Muhammed v. Fitzpatrick, 91 A.D.3d 1353 (4th Dept. 2012). Even if the Conduit was corroded and such corrosion was a factor in causing Muir Lake' s damages, summary judgment is inappropriate because a question of material fact exists as to whether D&D's negligence was the proximate cause of Muir Lake's damages. Nonetheless, D&D attempts to primarily rely on two cases in support of its position, Butler-Francis v. New York City Hous. Auth. , 38 A.D.3d 433 (1st Dept. 2007) and Clough v. Szymanski, 26 A.D.3d 894 (4th Dept. 2006), both of which are distinguishable from the instant case. Butler-Francis is a case in which a fire occurred and both the plaintiff and defendant offered an expert in support of their positions. See generally 38 A.D.3d 433. D&D attempts to equate Mr. - 23- Devgun with the fire marshal in Butler-Francis whom the First Department held had supplied "cogent evidence in support" ofhis opinions. ld. at 434. However, Mr. Devgun is not analogous to the fire marshal, but rather the other expert in that case who "never cited any record evidence supporting [the] conclusion, offering mere speculation as to the source of the gas and how it may have been ignited." ld. Mr. Devgun has not supported his conclusions with cogent evidence; instead, he has made baseless and speculative conclusions that consequently exceed the realm of his alleged "expertise." Therefore, Defendant's reliance on Butler-Francis is inapposite. D&D thereafter relies on Clough to attempt to discredit Plaintiffs' submitted evidence. (D&D App. Br. 19). D&D states that Clough "illustrates the doctrine that when a defendant meets its burden on a motion for summary judgment, an expert' s speculative affidavit does not create a question of fact." I d. However, D&D points out the very issue with its own argument: this Court illustrated the doctrine that such issues only arise "when a defendant meets its burden on a motion for summary judgment." ld. D&D has not met its burden here. D&D continually ignores the rule that "[t]he failure to make such a prima facie showing requires the denial of the motion, and renders the sufficiency of plaintiffs opposition immaterial." Wasserman, 307 A.D.2d at 226. Therefore, while Plaintiffs fully rely on the proof they have submitted and contend that such proof is sufficient to raise a question of fact such that D&D is not entitled to judgement as a matter of law, it is important to note that Plaintiffs never had the burden of doing so. "Until [Defendant] establishe[d] its entitlement to judgment as a matter oflaw, the burden [did] not shift to the [Plaintiffs] to raise an issue of fact and the motion must be denied." Przespo, 34 Misc.3d 1240(A). Therefore, this Court should affirm the Trial Court Order denying D&D' s motions for summary judgment. -24- B. Foreseeability is a question of fact for the jury. Foreseeability is a fact-specific determination. The question of foreseeability is for the court only when the facts are undisputed and only one inference may be drawn; it is for the jury when varying inferences maybe drawn. Rivera v. New York City Transit Authority, 77 N.Y.2d 322 (1991) (reversing judgment and remanding for new trial, reasoning that the question of foreseeability was for the jury to resolve, with proper and full instructions when varying inferences may be drawn from the facts and evidence); Kritz v. Schum, 75 N.Y.2d 25 (1989) (reversing summary judgment for defendants, finding that there were questions of fact for the jury to resolve). It is well settled that in determining a motion for summary judgment, "the court' s role is limited to issue finding, not issue resolution." Kritz v. Schum, 75 N.Y.2d 25, 33 (1989). In this case, there are various questions of fact presented, including whether D&D was negligent and whether its actions caused the Conduit to rupture, which preclude a grant of summary judgment to D&D. It is well settled that because the determination of legal causation turns upon questions of foreseeability and "what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve." Kritz v. Schum, 75 N.Y.2d 25, 33 (1989), quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315 (1980); see also, Levy v. Cascades Operating Corp, 289 N.Y. 714 (1942) (issues of negligence were questions of fact for the jury). D&D suggests that the Conduit simply "gave out" and contends that Plaintiffs' damages were not foreseeable - going so far as to claim that it was not foreseeable that the conduit would break if the utility pole were not supported. (See D&D App. Br. 22-23). Here, Plaintiffs have submitted evidence that establishes D&D failed to support the wires that run through the conduit -25- 6-8 feet in the air through a riser during one and one-half (1 ~) hours while D&D performed the utility pole replacement. (See R. 858-67). Plaintiffs have also submitted the reports of Mr. Pearlman - who was present at the time the Conduit was excavated, and the affidavit of Mr. Allen - who was also present at the time the Conduit was excavated. Both observed that the Conduit was ruptured and that the parallel conduit was also torqued. It is a logical inference for the jury's consideration that such damage was caused by D&D' s failure to support the wires during the replacement, and not by mere "corrosion" as D&D contends. Thus, the Trial Court Order denying D&D' s motions for summary judgment should be affirmed. CONCLUSION For the foregoing reasons, Plaintiff-Respondents Ronald J. Papa and Theresa M. Papa d/b/a Muir Lake Associates and Plaintiff-Respondent National Fire Adjustment Co. Inc. respectfully request that this Court enter an Order affirming the Trial Court Order in all respects and awarding such other and further relief as this Court deems just and proper. DATED: Buffalo, New York August 1,2016 DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP By: el!t!fe;AA ~ n Q Elizabeth A. Kraengel, E ---- Charles C. Ritter, Jr. , Esq. Attorneys for Plaintiff-Respondents Ronald J Papa and Theresa M. Papa d/b/a Muir Lake Associates and Plaintiff-Respondent National Fire Adjustment Co. Inc. 701 Seneca Street, Suite 750 Buffalo, New York 1421 0 Tel: (716) 855-1111 ekraengel@dhpglaw .com critter@dhpglaw .com -26-