In this declaratory judgment action, TIC moves for an order granting it summary judgment declaring that it has no duty to defend or indemnify defendants Prospers in a personal injury action, in which the plaintiff alleges that she sustained injuries due to a defective sidewalk located in front of a dwelling owned by the Prospers.
This action seeks to resolve whether the Prospers are entitled to coverage under an insurance policy that TIC issued to them covering the subject dwelling. TIC contends that it is entitled to summary judgment because the policy issued to the Prospers excludes coverage for liability where the injury occurs in premises in which the insureds do not reside in one of the family units, and the Prospers did not reside in any such unit. The Prospers contend that they are entitled to coverage because the subject dwelling was their secondary residence.
TIC issued a Dwelling Package Policy to the Prospers under policy number DPP 2181042, effective August 30, 2003 to August 30, 2004. The address listed on the policy is 1301 Needham Avenue, Bronx, New York 10469, a three-family dwelling (the Premises).
The policy provides coverage for liability due to bodily injury caused by an “occurrence” or accident. However, this coverage is subject to certain exclusions, one of which applies to any claim for bodily injury sustained at a location in which the Prospers do not reside in one of the family units of a one- to four-family dwelling.
The policy defines “insured location” as the residence premises. The policy defines “residence premises” as: a. the one family dwelling, other structures, and grounds; or b. that part of any other building; where you [the named insured] reside and which is shown as the “residence premises” in the Declarations.
Residence premises also means a two, three or four family dwelling where you reside in at least one of the family units and which is shown as the residence premises in the Declarations.
In the underlying complaint, TD alleges that, on February 28, 2004, she suffered bodily injury when she fell on the sidewalk in front of the Premises due to the Prospers’ negligence.
On February 14, 2005, TIC received notice of the underlying claim. Shortly after receiving notice, TIC initiated an investigation into TD’s claim. As part of its investigation, TIC retained an investigator. On February 22, 2005, the investigator interviewed Joseph Prosper, who provided a written statement.
As a result of that interview, TIC learned the following facts: the Premises is a two-story house that the Prospers purchased in 1994, which was not their primary residence. TD was the daughter of a tenant, and lived in Apartment 2F. For the preceding 20 years, the Prospers resided at 3456 Eastchester Road, Apt. 2F, Bronx, New York, not the 1301 Needham Avenue address stated in the policy. The Premises was located a few blocks from the Prospers’ residence on Eastchester Road. Prosper allegedly went to the Premises on a daily basis to check on it, and he put the garbage out for pickup on Tuesdays and Fridays.
To Be Cont…
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