| Vela v Tower Ins. Co. of N.Y. |
| 2011 NY Slip Op 03588 [83 AD3d 1050] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Ofelia Vela, Respondent, v Tower Insurance Company ofNew York, Appellant. |
—[*1] Craig A. Blumberg, New York, N.Y., for respondent.
In an action to recover damages for breach of a homeowner's insurance policy, the defendantappeals from so much of an order of the Supreme Court, Suffolk County (Cohen, J.), enteredDecember 14, 2009, as denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, with costs, and the defendant'smotion for summary judgment dismissing the complaint is granted.
The defendant, Tower Insurance Company of New York (hereinafter Tower), issued ahomeowner's policy (hereinafter the policy) to the plaintiff for a residential property in CentralIslip (hereinafter the premises), which she purchased in December 2006. The policy contained a"residence premises" provision, pursuant to which coverage was provided for a one- ortwo-family dwelling "where you [meaning the insured] reside and which is shown as the'residence premises' in the Declarations." When the premises sustained water damage in the sumof approximately $228,000, Tower disclaimed coverage on the ground, inter alia, that theplaintiff never resided at the premises. Thereafter, the plaintiff commenced this action to recoverdamages for breach of the policy. Tower moved for summary judgment dismissing the complaint,and the Supreme Court, among other things, denied the motion. Tower appeals, and we reversethe order insofar as appealed from.
The Supreme Court erred in denying Tower's motion for summary judgment dismissing thecomplaint. "The standard for determining residency for purposes of insurance coverage 'requiressomething more than temporary or physical presence and requires at least some degree ofpermanence and intention to remain' " (Government Empls. Ins. Co. v Paolicelli, 303AD2d 633, 633 [2003], quoting New York Cent. Mut. Fire Ins. Co. v Kowalski, 195AD2d 940, 941 [1993]; see Fennell v New York Cent. Mut. Fire Ins. Co., 305 AD2d 452,453 [2003]). Tower demonstrated its prima facie entitlement to judgment as a matter of law bysubmitting, among other things, the policy and its declaration page indicating that the "residencepremises" were the premises at issue herein, along with the plaintiff's policy application in whichshe asserted that the premises were owner-occupied, and her deposition testimony that thepremises had been unoccupied since the closing and that, when the water damage occurred, she,her husband, and their children were living at another property in Queens County, which wasowned by her husband.[*2]
In opposition, the plaintiff failed to raise a triable issue offact (see Megafu v Tower Ins. Co. of N.Y., 73 AD3d 713 [2010]). Contrary to hercontention, the policy's "residence premises" provision is not ambiguous (see Marshall vTower Ins. Co. of N.Y., 44 AD3d 1014, 1015 [2007]) and, therefore, must be accorded itsplain and ordinary meaning (see NIACC, LLC v Greenwich Ins. Co., 51 AD3d 883, 884[2008]). The plaintiff's mere intention to reside at the premises was insufficient to satisfy thepolicy's "residence premises" requirement. Moreover, the affidavits of the plaintiff and herhusband stating that they slept at the premises many nights while making repairs to the premisesmust be viewed as presenting a feigned factual issue designed to avoid the consequences of theplaintiff's earlier admission in her deposition testimony that the premises were unoccupied at alltimes from the date of the closing to the date of the loss (see Buziashvili v Ryan, 264AD2d 797, 798 [1999]). Further, contrary to the plaintiff's contention, the policy's "residencepremises" provision was not rendered ambiguous by language in other policy provisionspertaining to circumstances where the residence premises were not the insured's principal placeof residence, or where the insured was required to maintain heat and shut off the water when theresidence premises were unoccupied.
In view of our determination, we need not reach Tower's remaining contention. Skelos, J.P.,Balkin, Leventhal and Sgroi, JJ., concur.