throbber
FILED: BROOME COUNTY CLERK 06/08/2018 11:35 AM
`FILED: BROOME COUNTY CLERK 06m2018 11:35 AM‘
`
`NYSCEF DOC NO. 89
`,StatecyF9V?zufonQ
`NYSCEF DOC. NO. 89
`' Supreme Court, flppefflzte @ivz'sion
`QfiinfJucficid(Department
`I
`
`INDEX NO. 2014/002262
`EINDEX NO~ 2014/002262
`
`
`
`
`
`fi3c31v3o VYSCEF: 06/08/2018
`RECEIVED NYSCEF: 06/08/2018
`C
`
`£1,720,[0/0 0%(42
`
`'
`
`rDecided and Entered:
`
`February 22, 2018
`
`-
`
`DELORES M iCOTILLlS,
`
`V
`
`Respondent,
`'
`
`524846
`
`'
`
`.
`
`NEW YORK CENTRAL MUTUAL FIRE
`
`‘
`
`-
`
`~
`
`'
`
`MEMORANDUM AND ORDER
`
`'
`
`'
`
`INSURANCE COMPANY,
`
`Appellant.
`
`Calendar Date:
`
`January 10, 2018
`
`BROOMECOUNDMXERK
`
`Before: McCarthy, J. P. Devine, Aarons, Rumsey‘and Pritzker, JJ.‘
`
`Law .Office of Keith D. Miller, Liverpool (KeithD. Miller
`of counsel), for appellant.
`
`Lynn Law Firm, LLP, Syracuse (Martin A. Lynn of counsel),
`for respondent.
`‘
`'
`
`Aarons, J.
`
`(Reynolds
`from an order of the Supreme Court
`Appeals (1)
`Fitzgerald, J.), entered January 11, 2017 in Broome County, which
`. denied defendant’s motion to set aside the verdict, and (2)
`from
`_a judgment of said court, entered January 19,2017 in Broome
`, County, upon a verdict rendered in favor of plaintiff.
`
`In Séptember 2013, a fire damaged a house (hereinafter the
`insured premises) owned by plaintiff in the City of Binghamton,
`Brdome County.
`The insured premises was a two-family house
`wherein plaintiff lived in the top-floor unit, and the first-_
`floor unit was used as rental property . At the time of the fire,
`the insured premises was insured under a homeownerls insurance
`policy issued by defendant to plaintiff. Plaintiff claimed a
`
`[i
`
`iof5
`1 of 5
`
`

`

`FILED: BROOME COUNTY CLERK 06/08/2018 11:35 AM
`FILED: BROOME COUNTY CLERK 06m2018 11:35 AM
`
`NYSCEF DOC. NO. 89
`NYSCEF DOC. NO. 89
`.
`'
`_
`
`INDEX NO. 2014/002262
`INDEX NO' 2014/0.02262
`
`
`
`
`
`
`RECEIVED NYSCEF: 06/08/2018
`RSCMIVMD'VYSCEF: 06/08/2018
`
`-2—
`
`-
`
`'
`
`524846
`
`loss under the policy, but defendant disclaimed coverage on the
`basis that plaintiff did not reside at the insured premises on
`the date of loss.
`Following a trial',
`the jury found that
`plaintiff was a resident of the insured premises and awarded
`damages of $163, 938 94 for the structured dwelling, $7, 873, 02 for
`personalproperty andj$39600 for additional living expenses.
`Defendant thereafter mdyed under CPLR 4404 to set aside the
`A
`verdiCt.
`In January 2017, Supreme Court denied the motion.
`judgment wassubsequently entered upon the verdict in favor of
`plaintiff. These appeals by defendant ensued.
`;.
`f1””§1'~l\’[”lik' 4’1U ‘ii
`:
`We reject defendant' s assertion that the evidence was
`legally insufficient for. the jury to conclude that plaintiff was
`a resident of the insured premises at the time of the loss (see
`
`.generally Cohen v Hallmark Cards
`Inc., 45 NY2d 493, 499 [1978]).
`The insurance policy at issue provides coverage to a dwelling on
`the "residence premises " As relevant here, "residence premises"
`is defined as "[t]he two,
`three or four family dwelling Where you
`reside in at least one of the family units."
`The policy,
`however, does not define "reside" and,
`therefore, "[t]he standard
`for determining residency for purpOses of insurance coverage
`requires something more than temporary or physical presence and
`requires at least some degree of permanence and intention to.
`remain" (Dean v Tower Ins. Co. of N.Y., 19 NY3d 704, 708 [2012]
`.[internal quotation marks and citations omitted]; see Sosenko v
`Allstate Ins. Co., 155 AD3d 1482, 1482 [2017]; Fiore Excelsior
`
`Ins., 276 AD2d 895, 896 [2000], 1v dismissed [96 NY2d 755
`_
`[2001]). Whether a person resides in any particular location is
`generally a fact—based determination (see Yaniveth R. v LTD -
`Realty 00., 27 NY3d 186, 194 [2016]).
`
`'
`
`At trial, plaintiff's daughter-in—law testified that she '
`and her husband, plaintiff‘s son, approached plaintiff to see if
`she could watch-their daughter, plaintiff‘s granddaughter, during
`the day.
`fThe daughter—in-law stated that plaintiff agreed to so
`“as long as it was temporary." As such, starting in April 2013,
`plaintiff stayed at her son's house and babysat her_granddaughter
`-in the morning. Aside from a bed and a dresser, plaintiff did
`not bring other household furnishings from the insured premises
`to her son's house. Approximately two or three times a week,
`when the daughter—in—law returned early from work, she would take'
`
`2 of 5
`2 of 5
`
`‘
`
`-
`
`'
`
`v
`
`

`

`FILED: BROOME COUNTY CLERK 06/08/2018 11:35 AM
`FIL D. BROOME COUNTY CLERK”062018 11:35 AM
`
`. NYSCZF DOC. No. 89 ‘
`.
`.
`,
`NYSCEF DOC. NO. 89
`
`2014/002262
`INDEX NO. 2014/002262
`
`INDEX NO-
`
`
`
`
`06/08/2018
`RMCMIVMD YSCEF:
`RECEIVED NYSCEF: 06/08/2018
`
`73-
`
`-
`
`1.524846
`
`' plaintiff to the insured premises where plaintiff would check the
`mail and perform hoUsehold chores. Plaintiff testified that she
`ate meals at the insured premises, stayed at the insured premises
`during some weekends, did not change her mailing address from the
`insured premises and planned to return there after her son
`'
`_stopped working. Plaintiff also testified that she considered
`'the insured premises her home. Furthermore,
`the fire
`investigator who testified on behalf of defendant stated that his
`inspection of the Unit where plaintiff lived contained items and
`furnishings indicative of'a person living there.
`In our View,
`the foregoing proof was sufficient to establish that plaintiff's
`stay at her son's house was temporary in nature (see New York
`.Cent. Mut. Fire Ins. Co. v Kowalski, 222 AD2d 859, 861 [1995])
`and that she was a resident of the insured premises at the time
`; of the loss;
`
`Defendant also takes issue with part of the $163,938.94
`damages awarded for the structured dwelling.
`In particular,
`defendant argues that the.amount awarded for the demolition of
`the insured premises should have been $16,400 and not $28,900,
`because the latter figure, as testified to by an insurance‘
`adjuster,
`took into account asbestos control. We disagree.
`support of its argument, defendant relies on the pollution—
`exclusion clause in the policy. According to the exclusion's
`terms, coverage is not provided for a loss "caused directly or
`indirectly" by an ordinance or law requiring an insured, such as
`' plaintiff, "to test for, monitor, _clean up,
`remove, contain,
`'treat, detoxify or neutralize, or in any way respond to, or
`ll
`Even assuming that
`,assess the effects of, pollutants.
`the
`"pollutants" in the policy at issue encompassed asbestos,
`record does not demonstrate that asbestos directly or indirectly
`caused the loss. Accordingly, we find that defendant failed to
`show that the exclusion clause for pollutants applied to avoid
`,coverage (see generally Seaboard Sur. Co. v Gillette Co., 64 NY2d
`.,
`' 304, 311 [1984111
`
`In
`
`We are, however, persuaded by defendant's contention that
`the $39,600 damage award for additional living expenses.should be
`reduced.' In awarding that amount,
`the jury apparently credited
`the testimony of the insurance adjustor who was called as a
`I
`witness by plaintiff.
`The adjustor testified that lost rental
`
`3 df5
`3 of 5
`
`

`

`FILED: BROOME COUNTY CLERK 06/08/2018 11:35 AM
`FILED: BROOME COUNTY CLERK 06m2018 11:35 AM .
`
`NYSCEF DOC. Np. 89
`NYSCEF DOC. NO. 89
`
`INDEX NO. 2014/002262
`INDEXNQ ”14/092262
`‘
`
`
`
`
`
`
`R«C«1v«D VYSCEF: 06/08/2018
`RECEIVED NYSCEF: 06/08/2018
`
`/_
`
`,_4_
`
`.
`
`'
`
`524846-
`
`.income was factored.into his additional living expenses
`’calculation and opined that each unit had a rental value of $550
`per month. Plaintiff similarly testified that she had rented the
`first-floor unit for this amount and.that she had planned to show
`the unit to a prospective tenant but for the fire. Accordingly,
`the record supports a lost rental income award for the first—
`floor unit of $550 per month, or $19,800 over a period of three
`years.
`
`recognizes on appeal that_the first—
`~-Plaintiff, however,
`floor unit was to be used as a unit for rent and the other one
`
`The adjustor likewise admitted that
`was utilized as her home.
`plaintiff only received rental income from the first—floor units
`because she hoped to live in the other unit. Given that the
`trial evidence establishes that plaintiff intended to derive
`rental income.from only one unit,
`the damages award for

`To the
`additional living expenses should be reduced by $19,800.
`extent that the jury awarded this amount for monies expended by
`plaintiff for alternative housing, plaintiff failed to establish
`'that she "incurred" any such expenses as required under the
`policy. -In View of the foregoing,
`the amount of $39,600 awarded
`‘ by~the jury for additional living expenses must be reduced by
`$19,800.
`.
`'
`
`' McCarthy, J P., Devine, Rumsey and Pritzker, JJ., concur.
`
`4 of 5
`4of 5.
`
`

`

`FILED: BROOME COUNTY CLERK 06/08/2018 11:35 AM
`FILED: BROOME COUNTY CLERK 06m2018 11:35 AM
`
`NYSCEF DOC. NO. 89
`NYSCEF DOC. NO. 89
`’
`'
`.
`0
`
`INDEX NO. 2014/002262
`
`INDEX NO- 201.4/002262'
`
`
`
`
`
`RECEIVED NYSCEF: 06/08/2018
`RflCflIVaD VYSCEF: 06/08/2018
`
`-5—
`
`‘
`
`524846
`
`ORDERED that the order and judgment are modified, on the
`~facts; without costs, by reducing the award for additional living‘
`expenses to $19,800, and, as so modified, affirmed.
`
`ENTER:
`
`1
`
`j waflnflb‘ ,
`
`Robert D. Mayberger
`Clerk of the Court
`
`5 of5
`5 of 5
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket