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Georgitsi Realty, LLC v. Penn-Star Insurance Company

September 30, 2011

GEORGITSI REALTY, LLC,
PLAINTIFF,
v.
PENN-STAR INSURANCE COMPANY,
DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff Georgitsi Realty, LLC ("Plaintiff") brought this action for indemnification and reimbursement for losses and damages sustained to Plaintiff's property. Defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, and Plaintiff opposed the motion. U.S. Magistrate Judge Robert M. Levy issued a Report and Recommendation ("R & R"), dated August 30, 2011, recommending that Defendant's motion for summary judgment be granted. (See Docket Entry No. 25.) Plaintiff objected. For the reasons set forth below, the R & R is adopted and Defendant's motion for summary judgment is granted.

DISCUSSION*fn1

I.Legal Standard

A.Summary Judgment

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

B.Review of R & R

Where a party objects to a R & R, a district judge must make a de novo determination with respect to those portions of the R & R to which the party objects. See FED. R. CIV. P. 72(b); United States v. Male Juvenile, 121 F. 3d 34, 38 (2d Cir. 1997). Portions of the R & R to which the parties have not objected are reviewed for clear error. See Orellana v. World Courier, Inc., 2010 WL 3861013, at *2 (E.D.N.Y. Sept. 28, 2010).The district court may then "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." FED. R. CIV. P. 72(b); see also 28 U.S.C. § 636(b)(1).

II.Analysis

Plaintiff objects to the magistrate judge's finding that there are no material issues of fact regarding whether the vandalism and mischief provision*fn2 of the peril insurance policy at issue here, (the "Policy"), provides coverage for damages to Plaintiff's property, (the "Building"), resulting from work undertaken by the adjacent property owner and excavator. Specifically, Plaintiff disputes the magistrate judge's finding that there can be no inference of malicious and willful intent by the adjacent property owner or excavator toward the Building. (See Plaintiff's Objections to the R & R ("Obj. to R & R") at 3-7.) Thus, the court will review de novo Defendant's motion with respect to whether there is an issue of material fact as to the existence of malicious and willful intent by the adjacent property owner and excavator. See FED. R. CIV. P. 72(b); Male Juvenile, 121 F. 3d at 38.

Plaintiff does not object to the magistrate judge's findings that Plaintiff: (i) has not met its burden of showing that the sinkhole provision of the Policy is applicable to its losses; and (ii) lacks proof that the adjacent property owner and excavator acted recklessly. (See R & R at 6-9.) Upon due consideration, the court finds there was not clear error in those findings and, accordingly, adopts the R & R as to these issues. See Orellana, 2010 WL 3861013 at *2.

A.Standard of Law

As accurately set forth by the magistrate judge, "[t]he initial interpretation of a contract is a matter of law for the court to decide." Morgan Stanley Group, Inc. v. New England Ins. Co., 225 F. 3d 270, 275 (2d Cir. 2000) (citation and internal quotation marks omitted). "[U]nder New York law[,] . . . a policyholder bears the burden of showing that the insurance contract covers the loss, id. at 276 (citations omitted), and "[i]n order to obtain coverage under a first-party [insurance] policy, the insured must suffer a loss caused by a covered ...


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