Opinion
Index No. 656523/2021
03-06-2023
MIC General Insurance Corporation, Plaintiff, v. Rezia Rashid, Nawroz Zulfikar, and Ethel Cardoba, Defendants.
Mound Cotton Wollan & Greengrass LLP, New York, NY (Tania A. Gondiosa and Kevin Buckley of counsel), for plaintiff. No appearance for defendants.
Unpublished Opinion
Mound Cotton Wollan & Greengrass LLP, New York, NY (Tania A. Gondiosa and Kevin Buckley of counsel), for plaintiff.
No appearance for defendants.
Gerald Lebovits, J.
In this insurance-coverage action, plaintiff, MIC General Insurance Corp., seeks a declaratory judgment that it does not owe a duty to defend or indemnify defendants Rezia Rashid and Nawroz Zulfikar in an underlying slip-and-fall personal-injury action brought by defendant Ethel Cardoba in Supreme Court, Queens County. Plaintiff now moves without opposition under CPLR 3215 for default judgment. The motion is granted.
Plaintiff has established proper service on defendants (see NYSCEF Nos. 2-4); and no defendant has appeared. Plaintiff has also introduced proof of the facts constituting its claim, through the affidavit of its claims representative and the appended insurance policy issued to defendant Rashid, along with copies of transcripts of examinations under oath of Rashid and defendant Zulfikar. This evidence establishes for default-judgment purposes that Cardoba's personal-injury action is excluded from coverage, and therefore that notwithstanding the allegations of the complaint in the underlying action, plaintiff has no duty to defend or indemnify. (See Castlepoint Ins. Co. v Jaipersaud, 127 A.D.3d 401, 401-402 [1st Dept 2015].)
DISCUSSION
Plaintiff makes two arguments in support of its motion: First, that the underlying action is outside the policy's scope of coverage; and second, to the extent that the action is within the scope of coverage, a policy exclusion applies and ousts plaintiff's duty to defend and to indemnify. This court agrees with the second argument.
1. Plaintiff contends that the policy's applicable coverage language does not include the underlying action to begin with. This court disagrees. The policy provides that it will cover the costs of a defense (and of any judgment) should a "suit [be] brought against an 'insured' for damages because of 'bodily injury'... caused by an 'occurrence' to which this coverage applies." (NYSCEF No. 18 at 31 [Section II - Liability Coverages: Coverage E - Personal Liability].) The policy's definitions of "insured," "bodily injury," and "occurrence" encompass a suit against Rashid and Zulfikar (her daughter). (See id. at 20 [definitions].) The underlying action, therefore, is outside the policy's liability coverage only if Cardoba's slip-and-fall is not an "occurrence" to which "this coverage applies." The policy's liability-coverage section, however, fails to specify which occurrences it applies to-and which it does not. (See id. at 31.)
Plaintiff relies on the policy's definition of "insured location," which, plaintiff contends, does not include the dwelling outside which Cardoba slipped and fell. But the policy's personal-liability coverage-unlike its property-damage coverage-does not say that it is limited to occurrences happening in an "insured location" or "residence premises." (Compare id. at 20 [definition of "insured location], with id. at 21 [Section I - Property Coverages: Coverage A - Dwelling], with id. at 31 [Section II - Liability Coverages: Coverage E - Personal Liability].) Plaintiff's argument about the scope of liability coverage thus, at best, rests on an (unstated) inference that the policy only applies to occurrences that happen in an insured location. This inference may be reasonable; but an argument resting on inferences is inadequate to show clearly that no coverage exists, so as to oust the insurer's duty to defend midway through the underlying action. (See Zurich Am. Ins. Co. v ACE Am. Ins. Co., 165 A.D.3d 558, 558 [1st Dept 2018] ["The duty to defend does not attach where, as a matter of law, there is no basis on which the insurer may be held liable for indemnification."] [emphasis added].)
2. Plaintiff also contends that one or more policy exclusions clearly oust coverage for the underlying action to the extent that coverage would otherwise have existed. The court finds this argument persuasive. Personal Liability Coverage Exclusion 1 (e) (1) eliminates coverage for bodily injury "[a]rising out of a premises [o]wned by an 'insured'... that is not an 'insured location.'" (NYSCEF No. 18 at 31-32.) Given that language, this exclusion from personal-liability coverage-as opposed to the provision creating that coverage-turns on whether the property is an insured location.
The record reflects that at the time of Cardoba's fall in 2020, defendant Zulfikar owned the property at issue. (See NYSCEF No. 19 [property deed].) Zulfikar, as the daughter of policyholder Rashid, qualifies as an "insured." (See NYSCEF No. 18 at 20 [definitions].) And Cardoba's fall, which occurred on the sidewalk directly in front of the property, "ar[ose] out of [the] premises." (Id. at 32.)
The question thus becomes whether the property is an "insured location" within the meaning of the policy. Plaintiff has sufficiently established for default-judgment purposes that it is not. The policy defines "insured location" as including several types of premises. (See id. at 20 [Definitions § 4].) The only type that could potentially qualify here is "[t]he 'residence premises'" (id. [Definitions § 4 [a]]). (See Castlepoint Ins. Co. v Jaipersaud, 127 A.D.3d 401, 401-402 [1st Dept 2015] [addressing identical policy language in the context of a driveway trip-and-fall in front of the policyholder's property, and treating the dispositive question as whether that property qualified as "residence premises" within the meaning of the policy]. ) And in this case, as in Jaipersaud, the property is not within the definition of "residence premises."
The affirmation of the insurer's counsel in Jaipersaud, describing the circumstances of that coverage action; the governing insurance policy; and the complaint in the underlying personal-injury action can be found at in the trial-court record in the case. (See Index No. 154789/2012, NYSCEF Nos. 9 [affirmation], 10 [personal-injury complaint], and 21 [policy].)
Where, as here, the property described in the policy declarations is a separate dwelling (rather than an apartment in a larger building), that property is a "[r]esidence premises" only if it is a one-family or two-family dwelling. (See NYSCEF No. 18 at 20 [Definitions § 8 [a]-[b]].) The evidence submitted by plaintiff in support of its motion demonstrates that the property in this case is neither. Instead, it is a three-family dwelling, consisting of three units (basement apartment, first floor, second floor), each with a separate entrance and its own bedroom, kitchen, and bathroom. (See Dauria v CastlePoint Ins. Co., 104 A.D.3d 406, 406-407 [1st Dept 2013] [describing criteria for determining whether a dwelling contains two units or three]; NYSCEF No. 30 at 8, 10-11 [summarizing statements made to plaintiff's investigators by Rashid and Zulfikar].)
In short, the property where Cardoba tripped and fell, owned by an insured under the governing insurance policy, is not a "residence premises" within the meaning of that policy. As a result, it is not an "insured location," either. Cardoba's underlying personal-injury action thus seeks damages for "'bodily injury'... [a]rising out of a premises [o]wned by an 'insured'... that is not an 'insured location.'" (NYSCEF No. 18 at 12-13 [Coverage Exclusion 1 [e] [1]].) the policy clearly excludes liability coverage for that underlying action.
Accordingly, it is
ORDERED that plaintiff's motion under CPLR 3215 for default judgment is granted without opposition; and it is further
ADJUDGED and DECLARED that plaintiff is not obliged to provide a defense or indemnity to, or provide coverage for, defendants Rashid and Zulfikar in the action of Cardoba v. Zulfikar, Supreme Court, Queens County, Index No. 705999/2020; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.