| Marshall v Tower Ins. Co. of N.Y. |
| 2007 NY Slip Op 08200 [44 AD3d 1014] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Althia Marshall et al., Plaintiffs, and Joseph Gerard-Jean,Respondent, v Tower Insurance Company of New York, Appellant, et al.,Defendant. |
—[*1] Matarazzo Blumberg & Associates, LLP, New York, N.Y. (Barbara A. Matarazzo ofcounsel), for respondent and plaintiffs.
In an action to recover damages for breach of an insurance policy, the defendant TowerInsurance Company of New York appeals from so much of an order of the Supreme Court, KingsCounty (Schneier, J.), dated June 14, 2006, as denied that branch of its motion which was forsummary judgment dismissing the causes of action asserted by the plaintiff Joseph Gerard-Jeanagainst it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Tower Insurance Company of New York which was forsummary judgment dismissing the causes of action asserted by the plaintiff Joseph Gerard-Jeanagainst it is granted.
"[T]he construction of terms and conditions of an insurance policy that are clear andunambiguous presents a question of law to be determined by the court when the only issue iswhether the terms as stated in the policy apply to the facts" (Raino v Navigators Ins. Co.,268 AD2d 419, 419-420 [2000]; see also Briggs v Allstate Ins. Co., 1 AD3d 392 [2003]).Moreover, "where the provisions of the policy are clear and unambiguous, they must be giventheir plain and ordinary meaning, and courts should refrain from rewriting the agreement"(Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864 [1977]). However, anyambiguity must be construed against the insurer in favor of coverage (see Ace Wire & CableCo. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398 [1983]).[*2]
The provisions at issue in the instant policy are notambiguous. The policy defines the insured location as, inter alia, the "residence premises." Theterm "residence premises" is defined as follows: "8. 'Residence premises' means: a. The onefamily dwelling, other structures, and grounds; or b. That part of any other building; whereyou reside and which is shown as the 'residence premises' in the Declarations."
The declarations identify the insured as the plaintiff Joseph Gerard-Jean (hereinafter theplaintiff) with an address of 1598 E. 53rd Street, Brooklyn NY (hereinafter the subject premises).It further states that "The residence premises covered by this policy is located at the aboveinsured address."
Contrary to the plaintiff's contention, the set-off clause beginning "where you reside" clearlyapplies 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 youreside" (see Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57, 58 [2000]). Asthe parties do not dispute that the plaintiff, the named insured under the policy, did not reside atthe subject premises, the defendant Tower Insurance Company of New York properly concludedthat the subject premises were not covered under the policy and properly disclaimed on thatbasis. Rivera, J.P., Krausman, Florio and Dillon, JJ., concur. [See 12 Misc 3d 1170(A),2006 NY Slip Op 51125(U) (2006).]