`FILED: BROOME COUNTY CLERK 06m2018 11:35 AM‘
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`NYSCEF DOC NO. 89
`,StatecyF9V?zufonQ
`NYSCEF DOC. NO. 89
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`INDEX NO. 2014/002262
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`£1,720,[0/0 0%(42
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`rDecided and Entered:
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`February 22, 2018
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`DELORES M iCOTILLlS,
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`Respondent,
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`524846
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`NEW YORK CENTRAL MUTUAL FIRE
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`MEMORANDUM AND ORDER
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`INSURANCE COMPANY,
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`Appellant.
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`Calendar Date:
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`January 10, 2018
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`BROOMECOUNDMXERK
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`Before: McCarthy, J. P. Devine, Aarons, Rumsey‘and Pritzker, JJ.‘
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`Law .Office of Keith D. Miller, Liverpool (KeithD. Miller
`of counsel), for appellant.
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`Lynn Law Firm, LLP, Syracuse (Martin A. Lynn of counsel),
`for respondent.
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`Aarons, J.
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`(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
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`FILED: BROOME COUNTY CLERK 06/08/2018 11:35 AM
`FILED: BROOME COUNTY CLERK 06m2018 11:35 AM
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`NYSCEF DOC. NO. 89
`NYSCEF DOC. NO. 89
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`INDEX NO. 2014/002262
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`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
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`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
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`.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
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`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]).
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`'
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`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'
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`NYSCEF DOC. NO. 89
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`' 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;
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`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
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`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
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`.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.
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`recognizes on appeal that_the first—
`~-Plaintiff, however,
`floor unit was to be used as a unit for rent and the other one
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`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
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`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.
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`' McCarthy, J P., Devine, Rumsey and Pritzker, JJ., concur.
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`FILED: BROOME COUNTY CLERK 06/08/2018 11:35 AM
`FILED: BROOME COUNTY CLERK 06m2018 11:35 AM
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`NYSCEF DOC. NO. 89
`NYSCEF DOC. NO. 89
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`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.
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`ENTER:
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`j waflnflb‘ ,
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`Robert D. Mayberger
`Clerk of the Court
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