| Dean v Tower Ins. Co. of N.Y. |
| 2011 NY Slip Op 03899 [84 AD3d 499] |
| May 10, 2011 |
| Appellate Division, First Department |
| Douglas Dean et al., Appellants, v Tower InsuranceCompany of New York, Respondent. |
—[*1] Law Office of Max W. Gershweir, New York (Joseph S. Wiener of counsel), forrespondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered May 7, 2010, whichgranted defendant's motion for summary judgment dismissing the complaint and deniedplaintiffs' cross motion for summary judgment on liability, unanimously modified, on the law,defendant's motion denied, the complaint reinstated, and otherwise affirmed, without costs.
Defendant failed to satisfy its prima facie burden on its motion for summary judgment.Because the "residence premises" insurance policy fails to define what qualifies as "resides" forthe purposes of attaching coverage, the policy is ambiguous in the circumstances of this case,where the plaintiff insureds purchased the policy in advance of closing but were then unable tofulfill their intention of establishing residency at the subject premises due to their discovery andremediation of termite damage that required major renovations. "[B]efore an insurance companyis permitted to avoid policy coverage, it must satisfy the burden which it bears of establishingthat the exclusions or exemptions apply in the particular case, and that they are subject to noother reasonable interpretation" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311[1984] [citations omitted]). Accordingly, the ambiguity in the policy must be construed againstdefendant under the facts of this case, and precludes the grant of summary judgment in its favor(see Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398 [1983]). Marshall v Tower Ins. Co. of N.Y. (44AD3d 1014 [2007]) is inapposite because it did not address whether the term "residencepremises" is ambiguous in light of the policy's failure to define "resides." Moreover, unlike here,the plaintiff in Marshall had no intention of living at the premises (see Marshall vTower Ins. Co. of N.Y., 12 Misc 3d 1170[A], 2006 NY Slip Op 51125[U] [Sup Ct 2006]).
An issue of fact as to whether plaintiffs misrepresented their intention to reside in the [*2]subject premises as contemplated by the policy precludes a grant ofsummary judgment to both parties.
We have considered the parties' remaining contentions and find them to be without merit.Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Richter and Manzanet-Daniels, JJ.[Prior Case History: 2010 NY Slip Op 31107(U).]