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TIC issued a Dwelling Package Policy to the Prospers…cont

Although an insurer’s duty to defend its insured is determined by comparing the allegations of the complaint to the terms of the policy, an insurer may escape its duty to defend under the policy where it can be concluded as a matter of law that there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the injury insurance policy. Stated otherwise, even if the complaint triggers a duty to defend, that duty is not an interminable one, and will end if and when it is shown unequivocally that the damages alleged would not be covered by the policy.

The construction of terms and conditions of an insurance policy that are clear and unambiguous presents a question of law to be determined by the court when the only issue is whether the terms as stated in the policy apply to the facts. Moreover, where the provisions of the policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement.

In this case, the underlying complaint alleges that TD’s accident took place on the sidewalk in front of the Premises. The policy at issue in this case clearly excludes claims arising out of a premises owned by an insured rented to others by an insured that is not an insured location. The only portion of the policy definition of insured location relevant here is residence premises, which the policy defines as 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. These provisions are unambiguous, and operate to require insured residency as described, as a condition of coverage. Thus, any coverage for the Prospers with respect to the underlying action is contingent upon their residence at the Premises.

Although the Prospers concede that 3456 Eastchester Avenue is their primary residence, they assert that the Premises is their secondary residence and that thus, they are covered under the policy for the underlying action. While a person can have more than one residence for insurance coverage purposes,the standard for determining residency requires something more than temporary or physical presence and at least some degree of permanence and intention to remain. The same standard applies in other contexts, such as determining proper venue.
Here, the Prospers’ claim of residency arises out of their alleged use of the basement apartment at the Premises as a place to spend time privately together two or three times a month. However, this claim, even if true, fails to establish that they utilized the Premises as a secondary residence, as they do not contend that they have resided at the Premises with any degree of permanence or intent to remain indefinitely.

It is well settled that even regular and frequent overnight stays at a particular place do not render such a place a residence, as residence requires more stability than a brief sojourn for business, social or recreational activities.

Sanchez v TIC Ins. Co. of NY is directly on point. In that case, the Dwelling Package Policy issued to the plaintiffs by defendant TIC contained the same exclusion at issue in this case. TIC asserted that the underlying personal injury claim was not covered under this policy because at the time of the alleged accident, the insureds no longer resided at the Brooklyn address cited in the policy, but had moved to Florida. Although the plaintiffs admitted that they had moved to Florida, they contended that the Brooklyn address was a secondary residence, given the fact that they frequently visit their relatives, who reside in the Premises, for one and one half to two months at a time each year. The personal injury court found that this allegation was insufficient to support a finding that the Brooklyn address remained a viable residence for the Sanchezes as they have alleged, at best, that they have made lengthy visits to the premises, but they do not contend that they have resided in the household with any degree of permanence or intent to remain indefinitely. The court concluded that thus, the Brooklyn address listed on the insurance policy did not constitute the Sanchez’s residence such that the Sanchezes were covered by the insurance policy at issue, and granted TIC’s motion for an order declaring that it was not liable to defendant or to indemnify the plaintiffs in the underlying action.

In opposition to the motion, the Prospers fail to cite any relevant legal authority to support their claim that their use of the Premises for occasional liaisons is sufficient to constitute residency, or to create an issue of fact on that issue. While Mr. Prosper claims that he and Mrs. Prosper spent two to three nights per months at the Premises, it is undisputed that they kept no personal property at the Premises, and that they always returned to their 3456 Eastchester Road home, where they lived with their children. Mr. Prosper also does not dispute that his driver’s license lists 3456 Eastchester Road as his address, that his 2003 tax return listed the Premises solely as investment property, or that the address on file for both him and Mrs. Prosper at the board of elections is 3456 Eastchester Road. Under these circumstances, the Prospers cannot establish that they have resided at the Premises with any degree of permanence or intent to remain indefinitely.

In her opposition to the motion, TD also fails to create an issue of fact. Although TD attempts to use Mr. Prosper’s February 22, 2007 deposition testimony from the underlying action in order to create an issue of fact as to residency, in fact, that testimony completely undermines Mr. Prosper’s claim in this action that he and Mrs. Prosper used the Premises for their monthly rendezvous.

Accordingly, the Prospers’ alleged occasional use of the basement for privacy, even if believed, amounts to nothing more than a brief sojourn for social or recreational activities, and thus fails as a matter of law to rise to the level of residency. Because the Prospers did not reside at the Premises, under the clear and unambiguous terms of the policy, there is no coverage for the underlying medical claim.

The court has considered the remaining claims, and finds them to be without merit. Accordingly, it is ORDERED that plaintiffs motion for summary judgment declaring that it is not liable to defendants Mr. Prosper and Mrs. Prosper for either defense or indemnification in the underlying action captioned TD v The City of New York, Mrs. Prosper and Joseph Prosper, is granted; and it is further ADJUDGED AND DECLARED that plaintiff TIC of New York has no duty to defend or indemnify defendants Mr. Prosper and Mrs. Prosper in TD v The City of New York, Mrs. Prosper and Mr. Prosper.

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