Insured's Non-Residence at Insured Home Voids Claim For Fire Loss

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efendant New York Central Mutual Fire Insurance Company moves pursuant to CPLR R3211 for an order dismissing the plaintiff ‘s amended complaint in its entirety. The plaintiff opposes the instant application. Pursuant to an order dated November 17, 2011, the parties were notified that the court elected pursuant to CPLR R3211(c) to treat the defendant’s motion as a motion for summary judgment. For the reasons set forth more fully herein, it is ordered that the defendant’s motion is granted and the plaintiff’s complaint is dismissed in its entirety.

This action arises out of a property loss incurred by the plaintiff as a result of a fire that occurred on April 10, 2010. On the date of the fire, the subject property situated at 151 Private Woods Court, Lake Katrine, New York was owned by the plaintiff and rented to Norman Shatkin and Katherine Mansfield. Pursuant to the lease agreement between the plaintiff and Shatkin and Mansfield, the lease term commenced on May 1, 2008 and ended on April 30, 2010. The lease agreement further provided that “the attic is being used for storage by landlord and is not available for use by tenant.” Pursuant to the plaintiff, Shatkin and Mansfield occupied the premises for approximately eight years prior to the fire. The plaintiff obtained a homeowner policy of insurance from the defendant for the subject premises while the plaintiff was still residing at the premises with an original inception date of August 18, 1996. After the fire, the plaintiff submitted a claim under the policy which was subsequently denied by the defendant.

In order “to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment’ in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form.” (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff’d 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

The defendant has established its prima facie entitlement to judgment as a matter of law. In support of its application, the defendant has submitted, inter alia, the subject insurance policy with the plaintiff for 151 Private Woods Ct., Lake Katrine, New York. The policy of insurance specifically defines the covered dwelling as “[t]he dwelling on the “residence premises” shown in the Declarations, including structures attached to the dwelling…”. The policy further provides that the term “residence premises” means (1) the one family dwelling where the insured resides; (2) the two family dwelling where the insured resides in at least one of the family units; or (3) that part of any other building where the insured resides. Therefore, in order for the subject property to qualify as the plaintiff’s residence and come within the purview of the policy of insurance, the plaintiff must reside at the subject property.

To that end, the defendant has submitted two statements provided by the plaintiff that unequivocally demonstrate the plaintiff did not reside at the subject premises at the time of the loss. Specifically, on April 11, 2010, the plaintiff provided a written statement listing his address as 22 North Road, Tivoli, New York, indicating that the subject premises had been rented for the past eight years, and further stating that the plaintiff had resided in the subject premises “until 8 years ago”. The defendant obtained a second statement from the plaintiff on July 12, 2010. In this sworn statement the plaintiff indicated that the subject premises previously served as his primary residence from 1992 to 1998, but that he subsequently moved to Tivoli and commenced renting the subject premises approximately 8 years ago. Therefore, the defendant has established prima facie entitlement to judgment dismissing the plaintiff’s complaint. The plaintiff has failed to raise any triable issues of fact in opposition to the defendant’s showing. Notwithstanding the plaintiff’s assertion, the policy’s reference to the phrase “reside” is not ambiguous and must be accorded its plain and ordinary meaning. Unambiguous terms of a policy of insurance must be given their plain and ordinary meaning and the interpretation of such provisions is a question of law for the court. (White v. Continental Cas. Co., 9 NY3d 264 [2007].) It is significant that all of the definitions of “insured premises” in the subject policy have a common element requiring that it must be the residence of the insured. This fact emphasizes that the policy is only intended to afford coverage for places where the insured lives. (Metropolitan Property & Casualty Insur. Co. v. Pulido, 271 AD2d 57 [2nd Dept. 2000].)

Under the circumstances at bar, it is reasonable to conclude that the policy at issue was intended and written so as to provide liability coverage to the insured as his residence, which was either the premises described in the policy or any other place where he actually lived. (Id. at 61). Accordingly, because the insured did not reside at the subject property, the policy of insurance did not apply.

The plaintiff’s reliance on Dean v. Tower Ins. Co. of New York, 84 AD3d 499 (1st Dept. 2011), is misplaced.In Dean, the court’s limited holding stated: [b]ecause the residence premises’ insurance policy fails to define what qualified as resides’ for the purposes of attaching coverage, the policy is ambiguous in the circumstances of this case, where the plaintiffs-insureds purchased the policy in advance of closing but were then unable to fulfill their intention of establishing residence at the subject premises due to their discovery and remediation of termite damage that required major renovations. (Id. at 499).

As such, Dean is factually distinguishable. Here, the plaintiff vacated the subject premises approximately ten years before the loss occurred, except for continuing to use the attic area for storage, and had rented the same for approximately eight years. There has been no demonstration by the plaintiff that he would have resided in the subject premises but for an unforeseen event beyond his control.

Therefore, it is ordered that the defendant’s motion is granted and the defendant shall have summary judgment dismissing the plaintiff’s complaint in its entirety.

Where Late Notice is Immediately Apparent, Late Disclaimer Excuses Late Notice

Tower Ins. Co. of N.Y. v NHT Owners LLC Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered June 24, 2010, which, in this action for a declaratory judgment, denied plaintiff insurer’s motion for summary judgment and declared that it was obligated to defend and indemnify defendants- respondents NHT Owners LLC and Mallory Management Corp. in the underlying action against them, and granted said defendants-respondents’ cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs. A liability policy that requires an insured to provide notice of an occurrence to its insurer “as soon as practicable” obligates the insured to give notice of the occurrence within a reasonable period of time (Great Canal Realty Corp. v Seneca Ins. Co., 5 NY3d 742, 743 [2005]). However, we need not reach the question of whether, under all the circumstances, the insureds’ notice of claim, 62 days after the occurrence, was timely, where they conducted an inquiry into the underlying accident, and believed there was no liability (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 441 [1972]) because the court properly held that the notice of disclaimer, after a 33-day period, was untimely as a matter of law (see Ins Law § 3420[d]; First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 68-69 [2003]; see e.g. West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002],lv denied 98 NY2d 605 [2002]).

The insurer’s sole ground for the disclaimer of coverage was the insured’s delay in notifying it of the occurrence, which was readily apparent at the time of the notice of claim (see First Fin. Ins. Co., 1 NY3d at 69). We have considered the insurer’s remaining contentions and find them without merit.

Comment: The courts are rather unforgiving to insurers when disclaiming on late notice grounds, if the lateness of the notice is immediately apparent when the notice first comes in. This creates a dilemma for insurers, because sometimes the insured has a reasonable excuse for the late notice (e.g. being unaware of the occurrence). So the lesson for liability insurers is: when the first notice appears late, disclaim right away (nothing over 30 days is “safe”). If the insured has a legally valid excuse, let them come forward with it.