Opinion
680 CA 18–02072
07-31-2019
Herbert DEVAUL, Plaintiff–Appellant, v. ERIE INSURANCE COMPANY OF NEW YORK, Defendant–Respondent.
LYNN LAW FIRM, LLP, SYRACUSE (KELSEY W. SHANNON OF COUNSEL), FOR PLAINTIFF–APPELLANT. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (SEAN ESFORD OF COUNSEL), FOR DEFENDANT–RESPONDENT.
LYNN LAW FIRM, LLP, SYRACUSE (KELSEY W. SHANNON OF COUNSEL), FOR PLAINTIFF–APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (SEAN ESFORD OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff owned a home that defendant insured. After the home burned down under suspicious circumstances, defendant denied plaintiff's claim for coverage because, inter alia, defendant believed that plaintiff "intentionally caus[ed] the fire." Plaintiff thereafter commenced this breach of contract action to recover under the insurance policy, and Supreme Court denied plaintiff's motion for summary judgment on, inter alia, the issue of liability.
We affirm. Plaintiff's affidavit in support of his motion included only conclusory denials that he committed arson, which were insufficient to meet his initial burden on his motion for summary judgment (see generally Pullman v. Silverman, 28 N.Y.3d 1060, 1062, 43 N.Y.S.3d 793, 66 N.E.3d 663 [2016] ). The remaining submissions in support of plaintiff's motion merely highlighted gaps in defendant's affirmative defense of arson, and it is well established that "a party moving for summary judgment ... does not meet its burden by noting gaps in its opponent's proof" ( Nick's Garage, Inc. v. Geico Indem. Co., 165 A.D.3d 1621, 1622, 85 N.Y.S.3d 660 [4th Dept. 2018] [internal quotation marks omitted]; see Morley Maples, Inc. v. Dryden Mut. Ins. Co., 130 A.D.3d 1413, 1413–1415, 14 N.Y.S.3d 579 [3d Dept. 2015] ). We have considered and rejected plaintiff's remaining contentions.