Opinion
June 17, 1996
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendant's motion for summary judgment is granted, the plaintiffs' motion for leave to serve an amended complaint is denied as academic, and the complaint is dismissed.
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, the defendant proved that an excluded peril was the dominant and proximate cause of the water damage (see, Album Realty Corp. v American Home Assur. Co., 80 N.Y.2d 1008; Novick v. United Serv. Auto. Assn., 225 A.D.2d 676; Casey v. General Acc. Ins. Co., 178 A.D.2d 1001).
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 N.Y.2d 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.