Opinion
108453/08.
January 14, 2011.
Weg Myers, P.C., New York, NY, for Plaintiff.
Law Office of Max W. Gershweir, New York, NY, for Defendant.
DECISION AND ORDER
Papers considered in review of this motion for summary judgment:
Notice of Motion . . . . . . . . . . 1 Aff in Support . . . . . . . . . . . 2 Memo of Law . . . . . . . . . . . . . 3 Aff in Opp . . . . . . . . . . . . . 4 Memo of Law . . . . . . . . . . . . . 5 Reply Aff . . . . . . . . . . . . . . 6 Reply Memo of Law . . . . . . . . . . 7In this action for breach of contract, defendant Tower Insurance Company of New York ("Tower") moves pursuant to CPLR 3212 for an order granting summary judgment in its favor and dismissing plaintiff Tony Commisso's ("Commisso") complaint against it.
Commisso owns the premises located at 252-47 Leeds Road, Little Neck, New York, 11362 (the "premises"). From the time of his purchase until Commisso began to renovate the premises, in or around March 2007, Commisso's son and his son's girlfriend lived in the premises. They moved out prior to the commencement of renovations. On January 26, 2008, there was a fire at the premises. Commisso and his-family were not residing at the premises at the time of the fire.
At the time of the fire, Commisso had a homeowner's insurance policy issued by Tower, Policy # HOS2750271, effective January 11, 2007 through January 11, 2008 (the "policy"). Commisso first applied for this policy on or around December 22, 2006, through his insurance broker, John G. Lambros.
Subsequent to the fire, Commisso notified Tower and submitted an insurance claim. Tower refused to indemnify Commisso, and issued a denial letter dated March 11, 2008. Commisso then commenced this action by service of a summons and complaint, asserting a cause of action for breach of contract, alleging that Tower's refusal to provide coverage was a breach of the policy. In its amended answer, Tower denies all material allegations contained in the complaint. In addition, Tower asserts two affirmative defenses: first, that Commisso violated the terms of the policy by making material misrepresentations that he occupied the premises as his sole and primary residence; and second, that Commisso is not entitled to coverage for the premises as the policy was limited to coverage for residence premises, and that the premises were not Commisso's "residence premises."
Tower now moves for summary judgment dismissing the complaint, arguing that pursuant to the terms of the policy, coverage will not be provided if the insured intentionally conceals or misrepresents any material fact or circumstance related to the insurance, before or after a loss. Tower argues that Commisso stated in his application that the premises were to be used as his primary residence, but that Commisso never, in fact, moved into the premises, and that this constitutes a material misrepresentation, sufficient to "avoid" the insurance policy, pursuant to Insurance Law § 3105. In support, Tower submits an affidavit from Edward Blomquist ("Blomquist"), its vice president of personal-liens underwriting, and also submits Towers' underwriting guidelines, which state that Tower only issues homeowner policies to cover owner-occupied one or two family residences.
Tower also argues that Commisso is not entitled to damages for the loss at the premises because he did not live in the premises. Tower argues that the policy provides that it will cover direct physical loss to the "dwelling on the 'residence premises' shown in the Declarations." Tower further argues that pursuant to the "Definitions" contained in the policy, "residence premises" means "[t]he one family dwelling where [Commisso] resides and which is shown as the 'residence premises' in the Declarations." Therefore, Tower asserts, as Commisso never moved into or lived in the premises as required by the policy for coverage, the complaint should be dismissed.
The policy defines "residence premises," in pertinent part, as:
a. The one family dwelling, other structures, and grounds; or
b. That part of any other building;
where you reside and which is shown as the 'residence premises' in the Declarations.
The Declarations provide that "[t]he residence premises covered by this policy is located at the above insured address [25247 Leeds Rd., Little Neck, NY 11362]. . . ."
In opposition, Commisso argues that Tower has failed to establish that he made-material misrepresentations on his application for insurance. Commisso maintains that he purchased the premises to use as his primary residence, but had not yet occupied the premises due to renovations and construction which were taking place at the time of the fire. Commisso concedes that from January 2007, when the policy was issued, until March 2007, when the construction commenced, Commisso's son and his son's girlfriend resided in the house, so it would not be vacant. Commisso also argues that premises unoccupied due to construction are specifically covered by the terms of the policy.
In particular, Commisso points to the coverage limitations for premises under construction. In particular, he points to "Section I — Perils Insured Against," which provides in pertinent part:
Coverage A — Dwelling and Coverage B — Other Structures
We insure against risk of direct loss to property . . . only if that loss is a physical loss to property. We do not insure, however, for loss:
* * *
2. Caused by:
a. Freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing. This exclusion applies only while the dwelling is vacant, unoccupied or being constructed, unless you have taken reasonable care. . . .;
* * *
c. Theft in or to a dwelling under construction, or of materials and supplies for use in the construction until the dwelling is finished and occupied;
d. Vandalism and malicious mischief if the dwelling has been vacant for more than 30 consecutive days immediately before the loss. A dwelling being constructed is not considered vacant[.]
(Emphasis added).
Commisso also argues that the question of whether the premises were "residence premises" as provided in the policy is a question of fact for the jury. Lastly, Commisso argues that Tower's motion should be denied because relevant discovery has yet to be completed.
Discussion
A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
"It is well settled that when the terms of an agreement are clear and unambiguous, the court will not look beyond the four corners of the agreement and will enforce the writing according to its terms." Continental Ins. Co. v. 115-123 West 29th St. Owners Corp., 275 A.D.2d 604, 605 (1st Dep't 2000). Terms of a contract should be interpreted in accordance with their plain meaning, and courts will interpret an agreement to give meaning to each provision. Petracca v. Petracca, 302 A.D.2d 576 (2nd Dept. 2003); In re Total MRI Management, LLC, 11 Misc. 3d 1062A (Sup. Ct. Nassau Co. 2006). "The question of whether a writing is ambiguous is one of law to be resolved by the courts." In re Wallace, 86 N.Y.2d 543, 548 (1995).
The exact policy language relied on by Tower, which defines "residence premises," in pertinent part, as: "The one family dwelling, other structures, and grounds; or [] That part of any other building; where you reside and which is shown as the 'residence premises' in the Declarations," has been previously considered and found unambiguous. See Marshall v. Tower Insurance Co., 44 A.D.3d 1014, 1015 (2d Dep't 2007) ("the provisions at issue in the instant policy [defining 'residence premises'] are not ambiguous); Dean v. Tower Insurance Co., 2010 NY Slip Op 31107U, at 8 (Sup. Ct. N.Y. Co. May 7, 2010) (same). Accordingly, this unambiguous language of the policy must be afforded its plain and ordinary meaning. See Vigilant Ins. Co. v. Bear Stearns Cos., Inc., 10 N.Y.3d 170, 177 (2008) ("'unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court'") (quoting White v. Continental Cas. Co., 9 N.Y.3d 264, 267 (2007) (citation omitted)).
"Giving the words 'where you reside' their plain and ordinary meaning, the policy covered a dwelling where [Commisso] lived for a permanent or extended period of [time]." Dean, 2010 NY Slop OP 31107U, at 8 (internal quotations omitted). Similarly, "[t]he standard for determining residency for insurance coverage 'requires something more than temporary or physical presence and . . . at least some degree of permanence and intention to remain.'" Allstate Insurance Co. v. Rapp, 7 A.D.3d 302, 303 (1st Dep't 285) (quoting Government Empls. Ins. Co. v. Paolicelli, 303 A.D.2d 633, 633 (2d Dep't 2003)).
Commisso states in his affidavit that he purchased the premises with the intention of making them his primary residence, but first wished to renovate the premises. He further states that after purchasing the premises, but prior to commencing renovations, his son and son's girlfriend lived in the premises. Commisso also notes that his intention was to move into the premises once the renovations were complete. However, he and his family were not able to move into the premises due to the fire.
Similarly, in Dean, the plaintiff did not allege that they had ever lived in the subject premises. And as in Dean, "[a]t best, [Commisso has] established ownership of the house and presence in it to perform certain renovations, and a stated intent of living there." Dean, 2010 NY Slip Op 31107U, at 9. As Commisso never resided in the premises, and had only the intention to live there in the future, "there is insufficient evidence of [Commisso's] physical presence and permanency to demonstrate that [he] resided in the premises at any time prior to the date of loss. Accordingly, defendant has established there is no coverage, and is entitled to summary judgment." Dean, 2010 NY Slip Op 31107U, at 9.
Commisso's arguments do not refute this finding, nor does he establish the existence of a triable issue of fact. Commisso argues that other provision of the policy indicate that an unoccupied residence under construction may constitute "residence premises." In particular, Commisso looks to "Coverage A-Dwelling and Coverage B — Other Structures" under "Section I — Perils Insured Against," which list certain coverage limitations which apply "while the dwelling is vacant, unoccupied or being constructed," and provides that "[a] dwelling being constructed is not considered vacant." Those provisions merely anticipate that an insured may be absent from his or her dwelling for construction or other reasons. However, a dwelling under construction must still be an insured's "residence premises" to be covered under the policy. Commisso fails to establish that he ever resided at the premises.
Moreover, Commisso's argument that this motion is premature as there is still discovery to be conducted, including the examination before trial of Tower witnesses who submitted affidavits on this motion, is without merit. Commisso "failed to show that facts essential to justify opposition to the motion may emerge upon further discovery. A grant of summary judgment cannot be avoided by a claimed need for discovery unless come evidentiary basis is offered to suggest that discovery may lead to relevant evidence." Bailey v. New York City Transit Authority, 270 A.D.2d 156, 157 (1st Dep't 2000). See also Ruttara Sons Construction So., Inc. v. J. Petrocelli Construction, Inc., 257 A.D.2d 614 (2d Dep't 1999).
In accordance with the foregoing, it is
ORDERED that the motion for summary judgment by defendant Tower Insurance Company of New York dismissing the complaint is granted and the complaint is dismissed.
This constitutes the decision and order of the Court.