Skip to Main Content
Services Talent Knowledge
Site Search


Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

November 20, 2012

Court Of Appeals Finds Ambiguity In Homeowners Residency Requirement

The New York Court of Appeals recently decided a certified question from the First Department concerning a homeowners policy requirement that the insured reside at the premises. Douglas Dean v. Tower Insurance Company of New York, 2012 N.Y. Lexis 3088 (October 25, 2012).

Plaintiffs purchased a home in Irvington, New York, and obtained a homeowners policy from Tower. The closing was delayed, and plaintiffs were prevented from moving into the home because of termite damage which required extensive remediation extending over a period of one year, and which was still not completed when a fire damaged the premises on May 15, 2006.

Douglas Dean claimed that he was at the property at least five days a week performing repairs, and frequently stayed late into the night. He ate at the house every day, and slept there on several occasions.

The Tower policy provides as follows:

We cover: 1. The Dwelling on the 'residence premises' shown in the Declarations, including structures attached to the dwelling.

In the definitions section, 'residence premises' is defined as: 'The one family dwelling"¦where you reside.'

Tower denied the claim, and plaintiffs brought suit for breach of contract. After discovery, both parties moved for summary judgment. Supreme Court granted Tower's motion, and denied the plaintiffs' motion. The lower court found that the term "reside" was clear and unambiguous, and that plaintiffs had not established residency at the premises.

On Appeal, the Appellate Division, First Department, modified the order, finding that Tower had failed to define the term "resides", and that the policy was, therefore, ambiguous "in the circumstances of the case." The Appellate Division granted Tower leave to appeal to the Court of Appeals on a certified question.

The Court of Appeals affirmed. The Court noted that on the facts before it, "there are 'issues of fact as to whether Douglas' daily presence in the house, coupled with his intent to eventually move in with his family, is sufficient to satisfy the insurance policy's requirements***. Further, because the term 'reside' is not defined in the contract making the term 'residence premises' ambiguous, it is arguable that the reasonable expectations of an average insured***is that occupancy of the premises would satisfy the policy's requirements.*** Notably, the standard fire policy, as provided in Insurance Law §3404(e), speaks in terms of occupancy, and Insurance Law §3404(f)(1)(A), states that a policy 'with respect to the peril of fire' cannot contain provisions 'less favorable to the insured than those contained in the standard fire policy.'"

This decision addresses the issue of whether the term "reside" is ambiguous in a homeowners insurance policy where it is not defined, which resulted in a conflict between the First and Second Departments. See, Marshall v. Tower Ins. Co. of N.Y., 44 A.D.3d 1014 (2nd Dep't. 2007); Vela v. Tower Ins. Co. of N.Y., 83 A.D.3d 1050 (2nd Dep't. 2011), appeal withdrawn, 18 N.Y.3d 881 (2012); and Dean v. Tower Ins. Co. of N.Y., 84 A.D.3d 499 (1st Dep't. 2011). The absence of a policy definition of the term "reside" creates an ambiguity which will be construed against the insurer.

A more complete analysis of this issue was recently published in the New York Law Journal on November 5, 2012, by John R. Casey, a partner in Hiscock & Barclay's Insurance Coverage & Regulation Practice Area. If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact any of the members of the Insurance Coverage & Regulation Practice Area.


Click here to sign up for alerts, blog posts, and firm news.

Featured Media


Second Department Joins Other Departments: NYS Child Victims Act Applies to Out-of-State Residents Who Resided in NYS at Time of Abuse


Website Accessibility Lawsuits: Several "Tester" Plaintiffs—Gladys Vasquez, Monique Reid, Raymond Forrest, Pedro Martinez, Linda Slade, and Felipe Fernandez—Targeting Businesses in Recent Flurry of Lawsuits


Website Accessibility Lawsuits: Several "Tester" Plaintiffs—Compres, Sanchez, Fontanez, Pajaro, Garcia, and Jaquez—Targeting Businesses in Recent Flurry of Lawsuits


Website Accessibility Lawsuits: Several "Tester" Plaintiffs—Competello, Fernandez, Liz, Riley, and Trippett—Targeting Businesses in Recent Flurry of Lawsuits


CDPAP Providers Get First Look at the Future of CDPAP Without FIs


New York State Fiscal Year 2025 Budget: Implications for Employers Unpacked

We're Growing in DC!

We’re excited to announce Barclay Damon’s combination with Washington DC–based Shapiro, Lifschitz & Schram. SLS’s 10 lawyers, three paralegals, and four administrative staff will join Barclay Damon while maintaining their current office in DC’s central business district. Our clients will benefit from SLS’s corporate, real estate, finance, and construction litigation experience and national energy-industry profile, and their clients from our full range of services.

Read More

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out