M&A wins Summary Judgment for Client in Condominium’s Property Damage case claiming $5 million in water intrusion damages

A Kings County Judge granted M&A’s client summary judgment in a first-party property damage case in which a Condominium Board was claiming $5 million in damages from water intrusion following construction of the condominium in Brooklyn. The Court agreed that coverage was barred under the Sponsor’s OCP Policy for several reasons.  The email correspondence between the Board and the Sponsor established that the Sponsor failed to notify its insurer of the occurrence for over 3-1/2 years after the Board started complaining to the Sponsor of the alleged defective construction.  The insurer also had a late notice of claim defense based on the 4-1/2 month delay between when the Board served the Sponsor with notice of a warranty claim and when the Sponsor notified its insurer of the claim.  Other defenses included the EIFS Exclusion barred coverage; the alleged faulty construction of the condominium did not constitute an "occurrence"; the business risk exclusion g.4 barred coverage; and the Sponsor failed to establish that there was "property damage" during the policy period.

After offering the Sponsor’s counsel an opportunity to "try to come out from under," the Court directed the parties to draft an order granting the insurer’s summary judgment motion and letting the insurer out of the case before it launched into the deposition phase.