Summary
stating that "the interpretation of a contract" is a "purely legal issue"
Summary of this case from First Tech. Capital, Inc. v. Airborne, Inc.Opinion
12-15-2016
TOWER INSURANCE COMPANY OF NEW YORK, Plaintiff–Appellant, v. Avner ZAROOM, et al., Defendants–Respondents.
Brown & Associates, New York (James J. Croteau of counsel), for appellant. Erica T. Yitzhak, Great Neck, for Avner Zaroom and Gila Zaroom, respondents. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Yaakov Wise, respondent.
Brown & Associates, New York (James J. Croteau of counsel), for appellant.
Erica T. Yitzhak, Great Neck, for Avner Zaroom and Gila Zaroom, respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Yaakov Wise, respondent.
ACOSTA, J.P., ANDRIAS, MOSKOWITZ, GISCHE, WEBBER, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered March 3, 2016, which denied as premature plaintiff's motion for summary judgment declaring that it has no duty to defend or indemnify defendants Avner Zaroom and Gila Zaroom in the underlying personal injury action brought against them by defendant Yaakov Wise, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment declaring that plaintiff has no duty to defend or indemnify the Zaroom defendants in the underlying personal injury action.Plaintiff established its entitlement to judgment as a matter of law by submitting the affidavit of its investigator stating that she met with Mrs. Zaroom, who admitted that she and her husband did not reside at the insured premises as of the date of Wise's accident (see Tower Ins. Co. of N.Y. v. Hossain, 134 A.D.3d 644, 24 N.Y.S.3d 10 [1st Dept.2015] ; Tower Ins. Co. of N.Y. v. Brown, 130 A.D.3d 545, 545–546, 14 N.Y.S.3d 37 [1st Dept. 2015] ).
In opposition to plaintiff's motion, the Zarooms admitted that they did not so reside. The Zarooms' attorney claimed that plaintiff was aware that they did not reside at the insured premises but nevertheless continued to accept premiums. However, the affirmation of an attorney who has no personal knowledge lacks evidentiary value (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
Defendant Wise contends that the word "reside" is ambiguous. Although the argument was not raised below, purely legal issues, such as the interpretation of a contract, may be raised for the first time on appeal (see Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408–409, 884 N.Y.S.2d 24 [1st Dept.2009] ; Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 323 n. 2, 819 N.Y.S.2d 250 [1st Dept.2006], affd. 8 N.Y.3d 931, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2007] ). On the merits, under the circumstances of this action, as opposed to the circumstances in Dean v. Tower Ins. Co. of N.Y. , 19 N.Y.3d 704, 955 N.Y.S.2d 817, 979 N.E.2d 1143 (2012), "reside" is not ambiguous.