In Vela vs. Tower Insurance Company of New York, A.D.2d Dep't, April 26, 2011, the Second Department granted summary judgment to the insurer based upon the named insured's non-residency at the insured premises.
Tower Insurance issued a homeowner's insurance policy to Vela ("plaintiff") for residential property she purchased in 2006. The policy contained a "residence premises" provision pursuant to which coverage was provided for a one or two-family dwelling "where you [meaning the insured] reside and which is shown as the residence premises in the Declarations."
Following water damage to the premises of approximately $228,000, Tower disclaimed coverage on the ground that its insured, the plaintiff, never resided at the premises.
Plaintiff commenced suit, and Tower moved for summary judgment. The lower court denied the motion, and Tower appealed. The Second Department reversed. The Court observed that the standard for determining residency requires more than a temporary or physical presence and requires a degree of permanence and intent to remain. The Court held:
Tower demonstrated its prima facie entitlement to judgment as a matter of law by submitting, among other things, the policy and its declaration page indicating that 'residence premises' were the premises at issue herein, along with the plaintiff's policy application in which she asserted that the premises were owner-occupied, and her deposition testimony that the premises 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 was owned by her husband.
The Court held that the policy provision was unambiguous. Significantly, the Court noted that affidavits by the plaintiff and her husband stating that they slept at the premises many nights while making repairs "must be viewed as presenting a feigned factual issue designed to avoid the consequences of the plaintiff's earlier admission in her deposition testimony that the premises were unoccupied at all times from the date of the closing to the date of the loss (see Buziashvili v. Ryan, 264 A.D.2d 797, 798)."
This is a strict interpretation of the residence premises language of the policy in conjunction with the representations made by the insured in the application for coverage.
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