Preview
FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020
CI2020-15482 Index # : EF2020-0162
STATE OF NEW YORK
SUPREME COURT : COUNTY OF TOMPKINS
BARBARA U. COLLYER, and the
FRANK F. and BARBARA U. COLLYER, III
REVOCABLE INTER VIVOS TRUST,
Plaintiffs,
vs. Index No.: EF2020-0162
DANIELLE M. LAVIGNE,
NEW YORK CENTRAL MUTUAL FIRE
INSURANCE COMPANY,
CFCU COMMUNITY CREDIT UNION, and the
TOWN OF LANSING, NEW YORK,
Defendants.
ATTORNEY AFFIDAVIT
STATE OF NEW YORK )
) ss:
COUNTY OF ERIE )
MARCO CERCONE, ESQ., being duly sworn deposes and says:
1. I am an attorney duly licensed to practice law in the State of New York,
and I am a partner with the lavy firm of Rupp Baase Pfalzgraf Cunningham LLC, attorneys for the
defendant, New York Central Mutual Fire Insurance Company ("NYCM"), in connection with
the above-captioned matter. I extensively have worked on this matter; therefore, I fully am
familiar with the facts set forth herein.
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2. I submit this affidavit in support of NYCM's opposition to co-defendant
Danielle M. LaVigne's ("LaVigne") motion for partial summary judgment.
3. For the reasons that follow, LaVigne's motion partially is moot and the
remainder must be denied in its entirety.
PROCEDURAL HISTORY
4. Plaintiffs commenced this action on March 11, 2020 when they filed their
summons and complaint. See Docket Entry Nos. ("Dkt") 1-2.
plaintiffs'
5. On March 16, 2020, Danielle LaVigne answered complaint.
See Dkt. 6.
6. On March 26, 2020, co-defendant CFCU Community Credit Union
plaintiffs'
("CFCU") answered complaint. See Dkt. 13.
plaintiffs'
7. On May 1 1,2020, co-defendant Town of Lansing answered
complaint. See Dkt. 11.
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plaintiffs'
8. On April 29, 2020, NYCM answered complaint. A copy of
NYCM's answer is attached hereto as Exhibit A.
homeowners'
9. Briefly, this action emanates from a insurance claim
LaVigne filed with NYCM, that involved a fire that occurred at 25 Sperry Lane, Lansing,
New York ("subject property") on May 13, 2018 (the "Loss"). Following the Loss, NYCM
conducted an investigation into the circumstances surrounding the fire. Ultimately, NYCM
issued payment to LaVigne for her interest in the subject property and for what she substantiated
during NYCM's investigation. See Dkt. 1.
10. LaVigne brings the instant motion seeking an Order directing NYCM to:
(1) immediately pay CFCU the unpaid mortgage on the subject property; (2) immediately pay to
the Town of Lansing $31,606.24 for demolition and removal costs; (3) immediately pay LaVigne
attorneys'
the full replacement cost regarding her personal property claim; (4) Pay fees in the
amount of $25,000.00; and (5) impose sanctions as this Court deems just and proper.
1 1. For the reasons set forth below and in NYCM's accompanying
Memorandum of Law in Opposition to Co-Defendant Danielle M. LaVigne's Motion for Partial
Summary Judgment ("Memo of Law"), LaVigne's motion partially is moot and the remainder
must be denied in itsentirety.
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ARGUMENT
POINT I
LAVIGNE'S REQUEST FOR NYCM TO MAKE PAYMENT TO CFCU IS MOOT
12. LaVigne's request for payment to be made to co-defendant mortgagee
CFCU Community Credit Union ("CFCU") is moot because NYCM and CFCU have agreed to
payment of the mortgagee's claim. Correspondence filed by CFCU evidencing this agreement is
attached hereto as Exhibit B.
13. Therefore, LaVigne's first request for relief should be dismissed, as it is
moot.
POINT II
MS. LAVIGNE HAS FAILED TO PRODUCE EVIDENCE SUBSTANTIATING HER
ENTITLEMENT TO FULL PERSONAL PROPERTY REPLACEMENT COSTS
14. As a preliminary matter, LaVigne's motion does not contain any legal
memorandum citing or analyzing her burden as movant for summary judgment. Simply put, this
motion, in light of well-established legal precedent, should be denied.
A. LaVigne Has Failed to Meet Her Moving Burden
15. It iswell settled that a proponent of a summary judgment motion must
make a prima facie showing of entitlement to judgment as a matter of law. As the movant,
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Lavigne has the initial burden, regardless of ultimate burdens at trial. When a movant failsto
meet his initial burden on a motion, his motion properly is denied regardless of the sufficiency of
the opposing papers. See Memo of Law at p 4.
16. To establish a breach of contract claim, the movant must prove the
existence of an agreement, his own performance under the agreement, breach by the defendants,
and damages. New York courts have held that itis the insured's burden to establish the
existence of coverage. See Id. at pp. 4-5.
17. In this case, LaVigne's motion contains an affidavit that evidences the
existence of an insurance contract but contains no explanation nor analysis as to why she is
entitled to the relief sought in her motion. See Affidavit of Danielle LaVigne
("LaVigne Affidavit") at ¶ 28. Namely, LaVigne's personal property claim and demolition and
removal costs associated with the Loss. Therefore, LaVigne has failed to meet herprimafacie
burden of proving the existence of the breach of an agreement by NCYM. See Memo of Law at
pp. 4-5.
B. IgVigne's Motion is Premature
18. A motion for summary judgment will be denied as premature when there
is outstanding discovery sought by a defendant, such as the opportunity to depose witnesses and
eyewitnesses. See Memo of Law at pp. 5-6.
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19. In this case, LaVigne's motion is premature, and should be denied because
the deposition of LaVigne has not been conducted. LaVigne's motion argues at length regarding
her innocence regarding her receipt of over $400,000.00 in stolen money from her father. Yet,
receipts."
she also indicates that she is an accountant and "keeps all of her See LaVigne
Affidavit at ¶ 25. An issue of fact remains in this case because LaVigne states she is an
accountant who tracks allof her personal money flow, but alleges she did not know the over
$400,000.00 she received from her father, whom she worked for, had been stolen. These funds
were used to build LaVigne's home on the subject property. See Id. at p. 6.
20. Notwithstanding the below analysis of LaVigne's requests for relief,there
undoubtedly remains issues of fact warranting a trial in this matter. NYCM has the right to
conduct the deposition of LaVigne and is allowed to question LaVigne regarding all matters
material and necessary to the prosecution or defense of this case, including the nature of the
transfer of money to build her home, why she has not substantiated allof her personal property
claim, and why she failed to mitigate her damages. Depositions have not been conducted at this
time. Accordingly, LaVigne's motion is premature, and itshould be denied. SeeId.
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C. Lavigne Failed Produce Evidence Substantiating Her Entitlement To Full
Personal Property Replacement Costs
21. Should this Court decide LaVigne initially has met her moving burden and
LaVigne's motion is not premature, there stillremains an issue of fact warranting a trial in this
matter because LaVigne's motion fails to bring forward any evidence indicating her entitlement
to $24,465.00 for her personal property. See Memo of Law at p. 7.
22. Specifically, LaVigne's policy of insurance with NYCM specifically
provides that:
SECTION I - PROPERTY COVERAGES
* * *
C. Coverage C - Personal Property
1. Covered Property
"insured"
We cover personal property owned or used by an
while itis anywhere in the world. After a loss and at your
request, we will cover personal property owned by:
a. Others whole the property is on the part of the
premises"
"residence occupied by an "insured"; or
b. A guest or a "residence employee", while the property
is in any residence occupied by an "insured".
* * *
SECTION I - CONDITIONS
* * *
C. Loss Settlement
replace"
In this Condition C.. the terms "cost to repair or
cost"
and "replacement do not include the increased costs
incurred to comply with the enforcement of any ordinance
or law, except to the extent that coverage for these
increased costs are provided in E.11. Ordinance or Law
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under Section I - Coverages. Covered
Property property
losses are settled as follows:
1. Covered losses to the following property are settled at
replacement cost at the time of the loss:
a. Coverage C;
* * *
4. Replacement Cost Loss Settlement Condition
The following loss settlement condition applies to all
property described in C.1 and C.2 above:
a. We will pay not more than the least of the following
amounts:
1) Replacement cost at the time of the loss
without deduction for depreciation;
2) The full cost of repair at the time of loss;
3) The limit of liability that applies to
Coverage C, is applicable;
4) Any applicable special limits of liability
stated in this policy; or
For loss to item described in C.2.a. -
5) any
C.2.f., the limit of liability that applies to the
item.
b. If the cost to repair or replace the property
described in C.1 and C.2 is more than $500, we will
pay no more than the actual case value for the loss
until the actual repair or replacement is complete.
See LaVigne Affidavit at Exhibit 1, pp. 3, 13-14
23. LaVigne states that she submitted a sworn proof of loss claiming
$24,465.00 in damages. Other than merely stating she submitted a sworn proof of loss,
LaVigne's motion lacks any support for her claim that she is entitled to $24,465.00. See Memo
of Law at p. 8.
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24. LaVigne also failed to attach to her motion correspondence she received
from NYCM in response neither accepting nor rejecting her sworn proofs of loss. NYCM's
correspondence to LaVigne's counsel dated January 17, 20l9 is attached hereto as Exhibit C.
25. Without receipts, proof of ownership, or anything of that matter
substantiating her loss presented to the Court, there remains glaring issues of fact as to how
LaVigne could be entitled to $24,465.00.
26. Therefore, the woeful inadequacies of LaVigne's papers readily are
apparent. LaVigne submitted an affidavit in support of her motion that provides nothing of
substance indicating her entitlement to full personal property replacement costs. Simply,
LaVigne as failed to herprimafacie burden entitling her to summary judgment and her demand
for full personal property replacement costs must be denied. See Memo of Law at p. 9.
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POINT III
MS. LAVIGNE IS NOT ENTITLED TO THE COST OF DEBRIS REMOVAL BECAUSE
SHE FAILED TO MITIGATE HER DAMAGES
27. Should this Court decide LaVigne has met herprimafacie burden and
LaVigne's motion is not premature, there stillremains an issue of fact warranting a trial in this
matter regarding demolition and removal costs. For the reasons that follow, LaVigne's
deliberate choice not to mitigate her damages, after NYCM expressly informed her to do, and to
rely on unsupported claims of coverage warrants dismissal of her request for relief on the basis
of her failure to mitigate her damages.
28. The law imposes upon a party subjected to injury from breach of contract,
the duty of making reasonable exertions to minimize the injury. This duty need not be expressly
bargained for in a contract to be enforceable and defendants are entitled to a limitation of
damages if a plaintiff fails to make reasonable exertions to minimize the injury. See Memo of
Law at p. 10.
29. In addition to this legal duty to mitigate her damages, Lavigne also has a
contractual duty to mitigate her damages. LaVigne's policy of insurance with NYCM
specifically provides that:
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SECTION I - EXCLUSIONS
* * *
B. We do not insure for loss to property described in
Coverages A and B caused by any of the following.
However, any ensuing loss to property described in
Coverages A and B not precluded by any other provision in
this policy is covered.
* * *
2. Acts or decisions, including the failure to act or
decide, of any person, group, organization or
governmental body
* *
SECTION I - CONDITIONS
* * *
B. Duties After Loss
In case of a loss to covered property, we have no duty to
provide coverage under this policy ifthe failure to comply
with the following duties is prejudicial to us. These duties
"insured"
must be performed either by you, or an seeking
coverage, or a representative of either:
* * *
5. Protect the property from further damage. If repairs to
the property are required, you must:
a. Make reasonable and necessary repairs to protect
the property; and
b. Keep an accurate record of repair expenses;
See LaVigne Affidavit at Exhibit 1, pp. 12-13
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30. Therefore, LaVigne had both a common law and contractual duty to
mitigate her damages.
31. Furthermore, at its core, an insurance contract merely is designed put the
insured in as good as a condition as the insured would have been in had no loss occurred.
New York courts have held that itis a wise public policy and a rule ofobvious and simple justice
which limits contracts of insurance to liability only for indemnity of loss and thereby relieves
insurance contracts from any element of wager and precludes their use as a means of money
making and profit. See Memo of Law at pp. 11-12.
32. On two separate occasions, NYCM informed LaVigne's counsel of her
common law and contractual duties to mitigate her damages. Specifically, NYCM sent letters to
LaVigne's counsel on February 12, 2019 and May 7, 2019. Letters sent to LaVigne's counsel
are attached hereto as Exhibit D.
33. Despite NYCM's explicit notice to LaVigne, LaVigne failed to do
anything to protect or mitigate the damage to her property. See Memo of Law at p. 12.
34. Furthemlore, notice addressed to LaVigne from the Town of Lansing
clearly states LaVigne failed to mitigate her damages. See Lavigne Affidavit at Exhibit 8; see
also Memo of Law at p. 12.
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35. In sum, Ms. LaVigne sat on her hands and did nothing to mitigate her
damages resulting from the Loss. Similar to LaVigne's claim for personal property payment,
LaVigne's motion creates numerous issues of fact making her entitlement to partial summary
judgment unwarranted. For example, whether there is coverage for demolition and removal
pursuant to the contract, how she calculated her $31,606.24, and what remedial measure were
taken by LaVigne to protect the property. LaVigne's failure to articulate a viable reason why she
is entitled to payment under the insurance contract alone warrants dismissal of the motion for
partial summary judgment. Therefore, LaVigne's her demand for demolition and removal costs
must be denied. See Memo of Law pp. 12-13.
POINT IV_
ATTORNEYS'
LAVIGNE'S REQUEST FOR FEES IS NOT
SUPPORTED UNDER NEW YORK LAW AND LAVIGNE'S
REQUEST FOR SANCTIONS IS UNSUPPORTED
attorneys'
36. Under New York law, LaVigne cannot recover fees, costs,
disbursements, and litigation expenses in connection with bringing an affirmative lawsuit against
an insurer to settle their rights under the insurance contract and New York courts have held that
attorneys'
fees, costs, disbursements and litigation expenses cannot be recovered by an insured
as a form of consequential damages. See Memo of Law at p 13.
37. Itis well established that an insured may not recover the expenses incurred
in bringing an affirmative action against an insurer to settle its rights under an insurance policy.
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Attorneys'
fees are available only where such recovery is authorized by an agreement between
the parties, a statutory provision. or by the rules of the court. See Id. at pp. 13-15.
38. Simply, there are no allegations in Ms. LaVigne's answer asserting
cross-claims against NYCM nor in LaVigne's motion for partial summary judgment supporting a
attorneys'
deviation from the traditional American Rule that each party bears itsown fees.
See Id.
attorneys'
39. As a result, Ms. LaVigne's demand for fees, costs,
disbursements, and litigation expenses should be dismissed because New York law does not
allow for recovery of same. See Id.
40. Moreover, LaVigne's request for sanctions is unsubstantiated and is not
warranted because NYCM has come forward with several questions of law and fact in the instant
proceeding warranting the dismissal of LaVigne's motion in its entirety. Counsel's advocacy of
NYCM's position negates any finding of frivolous conduct and demonstrates the movant has no
actual grounds upon which to seek sanctions, and that the same likely are nothing more than a
negotiation and/or scare tactic. Therefore, LaVigne's request for sanctions in this matter are
wholly unsupported and improper. See Id. at pp. 15-16.
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WHEREFORE, your deponent respectfully requests that this Court deny
co-defendant Danielle M. LaVigne's motion for partial summary judgment, together with the
costs of this motion and any other or further relief that this Court deems just and proper.
Marco Cercone, Esq.
Sworn to before me this
Ño ary Public
Karen Morosey
NOTARY State
Public, of New York
No. 01MO4995922
Qualifiedin Erie
County
Commission Expires May 4, 2022
My
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FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 CI2020-15482 Index # : EF2020-0162 STATE OF NEW YORK SUPREME COURT : COUNTY OF TOMPKINS BARBARA U. COLLYER, and the FRANK F. and BARBARA U. COLLYER, III REVOCABLE INTER VIVOS TRUST, Plaintiffs, vs. Index No.: EF2020-0162 DANIELLE M. LAVIGNE, NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, CFCU COMMUNITY CREDIT UNION, and the TOWN OF LANSING, NEW YORK, Defendants. ATTORNEY AFFIDAVIT STATE OF NEW YORK ) ) ss: COUNTY OF ERIE ) MARCO CERCONE, ESQ., being duly sworn deposes and says: 1. I am an attorney duly licensed to practice law in the State of New York, and I am a partner with the lavy firm of Rupp Baase Pfalzgraf Cunningham LLC, attorneys for the defendant, New York Central Mutual Fire Insurance Company ("NYCM"), in connection with the above-captioned matter. I extensively have worked on this matter; therefore, I fully am familiar with the facts set forth herein. 1 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 2. I submit this affidavit in support of NYCM's opposition to co-defendant Danielle M. LaVigne's ("LaVigne") motion for partial summary judgment. 3. For the reasons that follow, LaVigne's motion partially is moot and the remainder must be denied in its entirety. PROCEDURAL HISTORY 4. Plaintiffs commenced this action on March 11, 2020 when they filed their summons and complaint. See Docket Entry Nos. ("Dkt") 1-2. plaintiffs' 5. On March 16, 2020, Danielle LaVigne answered complaint. See Dkt. 6. 6. On March 26, 2020, co-defendant CFCU Community Credit Union plaintiffs' ("CFCU") answered complaint. See Dkt. 13. plaintiffs' 7. On May 1 1,2020, co-defendant Town of Lansing answered complaint. See Dkt. 11. - 2 - 2 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 CI2020-15482 Index #: EF2020-0162 plaintiffs' 8. On April 29, 2020, NYCM answered complaint. A copy of NYCM's answer is attached hereto as Exhibit A. homeowners' 9. Briefly, this action emanates from a insurance claim LaVigne filed with NYCM, that involved a fire that occurred at 25 Sperry Lane, Lansing, New York ("subject property") on May 13, 2018 (the "Loss"). Following the Loss, NYCM conducted an investigation into the circumstances surrounding the fire. Ultimately, NYCM issued payment to LaVigne for her interest in the subject property and for what she substantiated during NYCM's investigation. See Dkt. 1. 10. LaVigne brings the instant motion seeking an Order directing NYCM to: (1) immediately pay CFCU the unpaid mortgage on the subject property; (2) immediately pay to the Town of Lansing $31,606.24 for demolition and removal costs; (3) immediately pay LaVigne attorneys' the full replacement cost regarding her personal property claim; (4) Pay fees in the amount of $25,000.00; and (5) impose sanctions as this Court deems just and proper. 1 1. For the reasons set forth below and in NYCM's accompanying Memorandum of Law in Opposition to Co-Defendant Danielle M. LaVigne's Motion for Partial Summary Judgment ("Memo of Law"), LaVigne's motion partially is moot and the remainder must be denied in itsentirety. - 3 - 3 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 CI2020-15482 Index #: EF2020-0162 ARGUMENT POINT I LAVIGNE'S REQUEST FOR NYCM TO MAKE PAYMENT TO CFCU IS MOOT 12. LaVigne's request for payment to be made to co-defendant mortgagee CFCU Community Credit Union ("CFCU") is moot because NYCM and CFCU have agreed to payment of the mortgagee's claim. Correspondence filed by CFCU evidencing this agreement is attached hereto as Exhibit B. 13. Therefore, LaVigne's first request for relief should be dismissed, as it is moot. POINT II MS. LAVIGNE HAS FAILED TO PRODUCE EVIDENCE SUBSTANTIATING HER ENTITLEMENT TO FULL PERSONAL PROPERTY REPLACEMENT COSTS 14. As a preliminary matter, LaVigne's motion does not contain any legal memorandum citing or analyzing her burden as movant for summary judgment. Simply put, this motion, in light of well-established legal precedent, should be denied. A. LaVigne Has Failed to Meet Her Moving Burden 15. It iswell settled that a proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. As the movant, - 4 - 4 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 Lavigne has the initial burden, regardless of ultimate burdens at trial. When a movant failsto meet his initial burden on a motion, his motion properly is denied regardless of the sufficiency of the opposing papers. See Memo of Law at p 4. 16. To establish a breach of contract claim, the movant must prove the existence of an agreement, his own performance under the agreement, breach by the defendants, and damages. New York courts have held that itis the insured's burden to establish the existence of coverage. See Id. at pp. 4-5. 17. In this case, LaVigne's motion contains an affidavit that evidences the existence of an insurance contract but contains no explanation nor analysis as to why she is entitled to the relief sought in her motion. See Affidavit of Danielle LaVigne ("LaVigne Affidavit") at ¶ 28. Namely, LaVigne's personal property claim and demolition and removal costs associated with the Loss. Therefore, LaVigne has failed to meet herprimafacie burden of proving the existence of the breach of an agreement by NCYM. See Memo of Law at pp. 4-5. B. IgVigne's Motion is Premature 18. A motion for summary judgment will be denied as premature when there is outstanding discovery sought by a defendant, such as the opportunity to depose witnesses and eyewitnesses. See Memo of Law at pp. 5-6. - 5 - 5 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 19. In this case, LaVigne's motion is premature, and should be denied because the deposition of LaVigne has not been conducted. LaVigne's motion argues at length regarding her innocence regarding her receipt of over $400,000.00 in stolen money from her father. Yet, receipts." she also indicates that she is an accountant and "keeps all of her See LaVigne Affidavit at ¶ 25. An issue of fact remains in this case because LaVigne states she is an accountant who tracks allof her personal money flow, but alleges she did not know the over $400,000.00 she received from her father, whom she worked for, had been stolen. These funds were used to build LaVigne's home on the subject property. See Id. at p. 6. 20. Notwithstanding the below analysis of LaVigne's requests for relief,there undoubtedly remains issues of fact warranting a trial in this matter. NYCM has the right to conduct the deposition of LaVigne and is allowed to question LaVigne regarding all matters material and necessary to the prosecution or defense of this case, including the nature of the transfer of money to build her home, why she has not substantiated allof her personal property claim, and why she failed to mitigate her damages. Depositions have not been conducted at this time. Accordingly, LaVigne's motion is premature, and itshould be denied. SeeId. - 6 - 6 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 CI2020-15482 Index #: EF2020-0162 C. Lavigne Failed Produce Evidence Substantiating Her Entitlement To Full Personal Property Replacement Costs 21. Should this Court decide LaVigne initially has met her moving burden and LaVigne's motion is not premature, there stillremains an issue of fact warranting a trial in this matter because LaVigne's motion fails to bring forward any evidence indicating her entitlement to $24,465.00 for her personal property. See Memo of Law at p. 7. 22. Specifically, LaVigne's policy of insurance with NYCM specifically provides that: SECTION I - PROPERTY COVERAGES * * * C. Coverage C - Personal Property 1. Covered Property "insured" We cover personal property owned or used by an while itis anywhere in the world. After a loss and at your request, we will cover personal property owned by: a. Others whole the property is on the part of the premises" "residence occupied by an "insured"; or b. A guest or a "residence employee", while the property is in any residence occupied by an "insured". * * * SECTION I - CONDITIONS * * * C. Loss Settlement replace" In this Condition C.. the terms "cost to repair or cost" and "replacement do not include the increased costs incurred to comply with the enforcement of any ordinance or law, except to the extent that coverage for these increased costs are provided in E.11. Ordinance or Law - 7 - 7 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 under Section I - Coverages. Covered Property property losses are settled as follows: 1. Covered losses to the following property are settled at replacement cost at the time of the loss: a. Coverage C; * * * 4. Replacement Cost Loss Settlement Condition The following loss settlement condition applies to all property described in C.1 and C.2 above: a. We will pay not more than the least of the following amounts: 1) Replacement cost at the time of the loss without deduction for depreciation; 2) The full cost of repair at the time of loss; 3) The limit of liability that applies to Coverage C, is applicable; 4) Any applicable special limits of liability stated in this policy; or For loss to item described in C.2.a. - 5) any C.2.f., the limit of liability that applies to the item. b. If the cost to repair or replace the property described in C.1 and C.2 is more than $500, we will pay no more than the actual case value for the loss until the actual repair or replacement is complete. See LaVigne Affidavit at Exhibit 1, pp. 3, 13-14 23. LaVigne states that she submitted a sworn proof of loss claiming $24,465.00 in damages. Other than merely stating she submitted a sworn proof of loss, LaVigne's motion lacks any support for her claim that she is entitled to $24,465.00. See Memo of Law at p. 8. - 8 - 8 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 24. LaVigne also failed to attach to her motion correspondence she received from NYCM in response neither accepting nor rejecting her sworn proofs of loss. NYCM's correspondence to LaVigne's counsel dated January 17, 20l9 is attached hereto as Exhibit C. 25. Without receipts, proof of ownership, or anything of that matter substantiating her loss presented to the Court, there remains glaring issues of fact as to how LaVigne could be entitled to $24,465.00. 26. Therefore, the woeful inadequacies of LaVigne's papers readily are apparent. LaVigne submitted an affidavit in support of her motion that provides nothing of substance indicating her entitlement to full personal property replacement costs. Simply, LaVigne as failed to herprimafacie burden entitling her to summary judgment and her demand for full personal property replacement costs must be denied. See Memo of Law at p. 9. - 9 - 9 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 POINT III MS. LAVIGNE IS NOT ENTITLED TO THE COST OF DEBRIS REMOVAL BECAUSE SHE FAILED TO MITIGATE HER DAMAGES 27. Should this Court decide LaVigne has met herprimafacie burden and LaVigne's motion is not premature, there stillremains an issue of fact warranting a trial in this matter regarding demolition and removal costs. For the reasons that follow, LaVigne's deliberate choice not to mitigate her damages, after NYCM expressly informed her to do, and to rely on unsupported claims of coverage warrants dismissal of her request for relief on the basis of her failure to mitigate her damages. 28. The law imposes upon a party subjected to injury from breach of contract, the duty of making reasonable exertions to minimize the injury. This duty need not be expressly bargained for in a contract to be enforceable and defendants are entitled to a limitation of damages if a plaintiff fails to make reasonable exertions to minimize the injury. See Memo of Law at p. 10. 29. In addition to this legal duty to mitigate her damages, Lavigne also has a contractual duty to mitigate her damages. LaVigne's policy of insurance with NYCM specifically provides that: - 10 - 10 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 SECTION I - EXCLUSIONS * * * B. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. * * * 2. Acts or decisions, including the failure to act or decide, of any person, group, organization or governmental body * * SECTION I - CONDITIONS * * * B. Duties After Loss In case of a loss to covered property, we have no duty to provide coverage under this policy ifthe failure to comply with the following duties is prejudicial to us. These duties "insured" must be performed either by you, or an seeking coverage, or a representative of either: * * * 5. Protect the property from further damage. If repairs to the property are required, you must: a. Make reasonable and necessary repairs to protect the property; and b. Keep an accurate record of repair expenses; See LaVigne Affidavit at Exhibit 1, pp. 12-13 - 11 - 11 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 30. Therefore, LaVigne had both a common law and contractual duty to mitigate her damages. 31. Furthermore, at its core, an insurance contract merely is designed put the insured in as good as a condition as the insured would have been in had no loss occurred. New York courts have held that itis a wise public policy and a rule ofobvious and simple justice which limits contracts of insurance to liability only for indemnity of loss and thereby relieves insurance contracts from any element of wager and precludes their use as a means of money making and profit. See Memo of Law at pp. 11-12. 32. On two separate occasions, NYCM informed LaVigne's counsel of her common law and contractual duties to mitigate her damages. Specifically, NYCM sent letters to LaVigne's counsel on February 12, 2019 and May 7, 2019. Letters sent to LaVigne's counsel are attached hereto as Exhibit D. 33. Despite NYCM's explicit notice to LaVigne, LaVigne failed to do anything to protect or mitigate the damage to her property. See Memo of Law at p. 12. 34. Furthemlore, notice addressed to LaVigne from the Town of Lansing clearly states LaVigne failed to mitigate her damages. See Lavigne Affidavit at Exhibit 8; see also Memo of Law at p. 12. - 12 - 12 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 CI2020-15482 Index #: EF2020-0162 35. In sum, Ms. LaVigne sat on her hands and did nothing to mitigate her damages resulting from the Loss. Similar to LaVigne's claim for personal property payment, LaVigne's motion creates numerous issues of fact making her entitlement to partial summary judgment unwarranted. For example, whether there is coverage for demolition and removal pursuant to the contract, how she calculated her $31,606.24, and what remedial measure were taken by LaVigne to protect the property. LaVigne's failure to articulate a viable reason why she is entitled to payment under the insurance contract alone warrants dismissal of the motion for partial summary judgment. Therefore, LaVigne's her demand for demolition and removal costs must be denied. See Memo of Law pp. 12-13. POINT IV_ ATTORNEYS' LAVIGNE'S REQUEST FOR FEES IS NOT SUPPORTED UNDER NEW YORK LAW AND LAVIGNE'S REQUEST FOR SANCTIONS IS UNSUPPORTED attorneys' 36. Under New York law, LaVigne cannot recover fees, costs, disbursements, and litigation expenses in connection with bringing an affirmative lawsuit against an insurer to settle their rights under the insurance contract and New York courts have held that attorneys' fees, costs, disbursements and litigation expenses cannot be recovered by an insured as a form of consequential damages. See Memo of Law at p 13. 37. Itis well established that an insured may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under an insurance policy. - 13 - 13 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 Cl2020-15482 Index #: EF2020-0162 Attorneys' fees are available only where such recovery is authorized by an agreement between the parties, a statutory provision. or by the rules of the court. See Id. at pp. 13-15. 38. Simply, there are no allegations in Ms. LaVigne's answer asserting cross-claims against NYCM nor in LaVigne's motion for partial summary judgment supporting a attorneys' deviation from the traditional American Rule that each party bears itsown fees. See Id. attorneys' 39. As a result, Ms. LaVigne's demand for fees, costs, disbursements, and litigation expenses should be dismissed because New York law does not allow for recovery of same. See Id. 40. Moreover, LaVigne's request for sanctions is unsubstantiated and is not warranted because NYCM has come forward with several questions of law and fact in the instant proceeding warranting the dismissal of LaVigne's motion in its entirety. Counsel's advocacy of NYCM's position negates any finding of frivolous conduct and demonstrates the movant has no actual grounds upon which to seek sanctions, and that the same likely are nothing more than a negotiation and/or scare tactic. Therefore, LaVigne's request for sanctions in this matter are wholly unsupported and improper. See Id. at pp. 15-16. - 14 - 14 of 15 FILED: TOMPKINS COUNTY CLERK 10/28/2020 03:36 PM INDEX NO. EF2020-0162 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/28/2020 CI2020-15482 Index #: EF2020-0162 WHEREFORE, your deponent respectfully requests that this Court deny co-defendant Danielle M. LaVigne's motion for partial summary judgment, together with the costs of this motion and any other or further relief that this Court deems just and proper. Marco Cercone, Esq. Sworn to before me this Ño ary Public Karen Morosey NOTARY State Public, of New York No. 01MO4995922 Qualifiedin Erie County Commission Expires May 4, 2022 My - 15 - 15 of 15