| Korson v Preferred Mut. Ins. Co. |
| 2008 NY Slip Op 08298 [55 AD3d 879] |
| October 28, 2008 |
| Appellate Division, Second Department |
| Steven Korson, Appellant, v Preferred Mutual InsuranceCompany, Respondent. |
—[*1] Eisenberg & Kirsch, Saratoga Springs, N.Y. (Jeffrey D. Wait of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend andindemnify the plaintiff in an action entitled Powell v Korson, pending in the Supreme Court,Orange County, under index No. 0785/05, the plaintiff appeals, as limited by his brief, from so much ofan order of the Supreme Court, Orange County (McGuirk, J.), dated August 1, 2007, as denied hisrenewed motion for summary judgment declaring that the defendant is obligated to defend andindemnify him in that action, and for an award of attorney's fees incurred in that action and in the instantaction.
Ordered that the order is modified, on the law, by adding a provision thereto searching the recordand awarding summary judgment to the defendant; as so modified, the order is affirmed insofar asappealed from, with costs to the defendant, and the matter is remitted to the Supreme Court, OrangeCounty, for the entry of a judgment declaring that the defendant is not obligated to defend andindemnify the plaintiff in an action entitled Powell v Korson, pending in the Supreme Court,Orange County, under index No. 0785/05.
At all relevant times, Steven Korson (hereinafter the plaintiff) and his brother, Dean Korson,resided in a house located in Warwick, New York. The plaintiff lived on the second floor. Dean, hiswife Brenda, her daughter Crystal Wise (Dean's stepdaughter), and Crystal's daughter Aaliyah Powell(Dean's step-granddaughter), resided on the first floor and in the basement. In 2005, Wise brought anaction against the plaintiff and Dean to recover damages for injuries allegedly sustained by Aaliyah as aresult of lead poisoning while Aaliyah and Wise resided in the house. Subsequently, [*2]the defendant, Preferred Mutual Insurance Company, denied theplaintiff's claim under a homeowner's insurance policy (hereinafter the policy) for a defense andindemnification in the underlying personal injury action. Both the plaintiff and Dean were named insuredsunder the policy. In issuing its disclaimer, the defendant relied on a policy exclusion which excludesfrom liability coverage, "bodily injury to you, and if residents of your household, your relatives, andpersons under the age of 21 in your care or in the care of your resident relatives." The policy containedno definition of the term "household."
The plaintiff brought the instant action, inter alia, for a judgment declaring that the defendant isobligated to defend and indemnify him in the underlying action. In a prior order, the Supreme Courtdenied the plaintiff's motion, among other things, for summary judgment, with leave to renew upon thecompletion of discovery. This Court affirmed the prior order (see Korson v Preferred Mut. Ins. Co., 39 AD3d 483 [2007]), findingthat, in order to prevail on the motion, the plaintiff was required to "establish either that Aaliyah was notin Dean's care" or "that Dean did not reside with the plaintiff," and that the plaintiff's moving papers"established neither" (id. at 485). After completion of discovery, which included, inter alia, theparties' depositions, and a full inspection of the premises by the defendant, the plaintiff renewed hissummary judgment motion, seeking, in addition to a declaration of coverage in the underlying action,attorney's fees incurred in both that action and the instant one.
The issue presented is whether or not Dean resided with the plaintiff in the latter's household. Theterm "household," as used in insurance policies, has been characterized as ambiguous and devoid of anyfixed meaning. Its interpretation requires an inquiry into the intent of the parties (see Auerbach v Otsego Mut. Fire Ins. Co.,36 AD3d 840, 841 [2007]; Matter of Hartford Ins. Co. of Midwest v Casella, 278AD2d 417, 418 [2000]; General Assur. Co. v Schmitt, 265 AD2d 299, 300 [1999];Schaut v Firemen's Ins. Co. of Newark, 130 AD2d 477, 478-479 [1987]). The interpretationmust reflect the reasonable expectation of the ordinary business person and the circumstances particularto each case must be considered (see Auerbach v Ostego Mut. Fire Ins. Co., 36 AD3d at841; Matter of Hartford Ins. Co. of Midwest v Casella, 278 AD2d at 418; General Assur.Co. v Schmitt, 265 AD2d at 300; Schaut v Fireman's Ins. Co. of Newark, 130 AD2d at479).
In this case, it was incumbent upon the plaintiff to make a prima facie showing that he maintained aseparate household from his brother Dean; he failed to do so. For example, the plaintiff's papersrevealed that at the relevant time, the subject house was a single-family home, with a single mailbox,and one electric meter. There was one gas bill for the subject address. There was unrestricted accessbetween the areas of the home in which the plaintiff lived, and in which Dean and his family lived.Furthermore, the homeowner's policy indicates that both the plaintiff and Dean are named insureds withrespect to "12 Orchard Street" in Warwick, New York. There is no indication in that document thattheir reasonable expectation was to insure anything other than one household. Accordingly, theSupreme Court correctly denied the plaintiff's motion for summary judgment.
Furthermore, under the circumstances, the record warrants granting the defendant's request, whichit made in the Supreme Court and makes again in this Court, that summary judgment be awarded in itsfavor, upon searching the record (see CPLR 3212 [b]). Since the plaintiff is not entitled to thesubject coverage, his claims for attorney's fees incurred in the underlying personal injury action and inthis action likewise fail. Since this is, in part, a declaratory judgment action, we remit the matter to theSupreme Court, Orange County, for the entry of a judgment declaring that the [*3]defendant is not obligated to defend and indemnify the plaintiff in theaction entitled Powell v Korson, pending in the Supreme Court, Orange County, under indexNo. 0785/05 (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed371 US 74 [1962], cert denied 371 US 901 [1962]). Rivera, J.P., Lifson, Miller and Eng,JJ., concur.