Opinion
113081/05.
December 24, 2008.
DECISION, ORDER ANDJUDGMENT
BACKGROUND
Plaintiff seeks summary judgment, pursuant to CPLR 3212, declaring that it has no duty to defend or indemnify defendant Constantino Monroy (defendant) in an action captioned Frieda Dennis v The City of New York, The New York City Department of Parks and Constantino Monroy, currently pending in Supreme Court, Kings County. Defendant has cross-moved for summary judgment, seeking both a declaration that plaintiff has a duty to defend or indemnify him in the above-referenced lawsuit, and an award of attorneys' fees for the cost of defending the instant motion.
Plaintiff asserts that it is not responsible to defend or indemnify defendant because the occurrence forming the basis of the underlying lawsuit did not occur at a premises where defendant resided.
Approximately 15 years ago, defendant purchased the subject property. Defendant apparently has never resided at the property, but asserts that he purchased the property for his brother, Carlos, who had bad credit. At the time of the alleged accident that forms the basis of the underlying action, defendant had an insurance policy in effect with plaintiff. Plaintiff became the insurer as part of a rollover agreement or transfer of the policy from Empire All City. Defendant asserts that he never received a copy of the policy, and plaintiff states that there is no indication that the policy was ever mailed to defendant.
The policy is entitled a "Dwelling Fire Policy," and lists as the address 1419 E. 59th St., Brooklyn, NY 11234. The policy states that "The residence premises covered by this policy are located at the above-insured address unless otherwise stated below."
The coverage under the policy is subject to certain exclusions. Specifically, the fifth exclusion for "bodily injury" or "property damage:"
d. arising out of a premises:
(1) Owned by an "insured";
(2) Rented by an "insured";
(3) Rented to others by an "insured;" that is not an "insured location."
Although the words "that is not an 'insured location'" appears only in paragraph 1.d.(3) of the Exclusions, it is clear that this phrase is intended to modify the preceding two subdivisions. Otherwise, the insurance policy would purport to exclude coverage for bodily injury or property damaged arising out of premises owned by the insured, which defeats the purpose of this liability coverage.
"Insured location" is defined in the policy as the "residence premises." "Residence premises" is defined, in relevant part, as
a. The one family dwelling, other structures, and grounds; or b. That part of any other building; where you [the named insured] reside and which is shown as the "residence premises" in the Declarations.
"Residence premises" also means a two, three or four family dwelling where you reside in at least one of the family units and which is shown as the "residence premises" in the Declarations.
The underlying lawsuit involves defendant Frieda Dennis seeking damages for injuries she allegedly sustained in front of the subject premises.
Although the policy states that defendant resides at the subject property, in his deposition defendant stated that he has never lived at the premises, nor has he ever visited the property. Defendant said that his brother and his brother's family live at the premises, and that, during the entire time that he has been the title-holder of the property, he has never performed any maintenance at the property, paid any taxes on the property, made any mortgage payments on the property, or made any insurance payments on the property. Defendant testified that, although all the bills were in his name, they went to the subject premises, and that he relied on his brother to do everything in conjunction with the property. The court notes that § 11 of the policy states that the policy does not provide coverage for an insured who intentionally conceals or misrepresents a material fact or circumstance. Defendant argues that the policy is for the property itself, and that it is irrelevant that he does not reside there.
DISCUSSION
In Marshall v Tower Insurance Company of New York ( 44 AD3d 1014 [2d Dept 2007]), a case almost identical to the instant action, the court determined that the insurance company was not responsible to defend or indemnify the insured because the insured did not reside at the premises at which the occurrence took place. The court stated that
"The construction of terms and conditions of an insurance policy that are clear and unambiguous presents a question of law to be determined by the court when the only issue is whether the terms as stated in the policy apply to the facts. Moreover, where the provisions of the policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement. However, any ambiguity must be construed against the insurer in favor of coverage.
The provisions at issue in the instant policy are not ambiguous. The policy defines the insured location as, inter alia, the "residence premises." The term "residence premises" is defined as follows:
"8. 'Residence premises' means:
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 [emphasis added]."
The Declarations identify the insured as [Constantino Monroy] with an address of [1419 E. 59th Street, Brooklyn NY] (hereinafter the subject premises). It further states that 'The residence premises covered by this policy is located at the above insured address.'
Contrary to [defendant]'s contention, the set-off clause beginning 'where you reside' clearly applies to and modifies sections 8(a) and (b) quoted above. Neither section 8(a) nor 8(b) identifies a specific location without also adding the underlined clause beginning 'where you reside'. As the parties do not dispute that the [defendant], the named insured under the policy, did not reside at the subject premises, the [plaintiff] Tower Insurance Company of New York properly concluded that the subject premises were not covered under the policy and properly disclaimed on that basis [internal quotation marks and citations omitted].
Id. at 1015.
Defendant's argument that the policy covers the address specified in the instrument regardless of whether or not the insured resided there is in direct contravention of the clear statement in the policy. As discussed above, the policy excludes coverage for "bodily injury" and "property damage" arising out of an insured's owned premises that is not an "insured location." Because Monroy admits that he does not reside at the subject property at issue, it is not an "insured location."
"Unambiguous terms in a policy of insurance must be given their plain and ordinary meaning and courts may not make or vary the contract of insurance to accomplish their notion of abstract justice or moral obligation [citation omitted]."
Metropolitan Property Casualty Ins. Co. v Pulido, 271 AD2d 57, 61 (2d Dept 2000) (interpreting a provision identical to the one in question).
Defendant's final argument, that plaintiff cannot deny coverage because defendant never received a copy of the policy, is without merit. Defendant asserts that he would never have agreed to a policy that did not provide coverage. Not only is this statement conclusory on the part of defendant, but the logical outcome of this theory would be that, since defendant never saw the contract, he could not be bound thereby. This would mean that there was no meeting of the minds, so no contract of insurance exists between the parties, defeating defendant's position. See generally Yenom Corp. v 155 Wooster St. Inc., 23 AD3d 259 (1st Dept 2005).
Based on the foregoing, plaintiff's motion is granted. Defendant's cross motion is denied in all respects. Defendant insured may recover attorneys' fees in connection with defending against the insurer's declaratory judgment action only if the insured is the prevailing party. U.S. Underwriters Insurance Company v City Club Hotel, LLC, 3 NY3d 592 (2004); Kramarik v Travelers, 25 AD3d 960 (3d Dept 2006).
CONCLUSION
It is hereby
ORDERED that plaintiff's motion is granted; and it is further
ADJUDGED and DECLARED that Tower Insurance Company of New York has no duty to defend or indemnify Constantino Monroy in Frieda Dennis v The City of New York, The New York City Department of Parks and Constantino Monroy pending in the Supreme Court, Kings County, under Index No. 11442/05; and it is further
ORDERED that defendant Constantino Monry's cross motion is denied.