In the recent case Tower Ins Co of New York v Brown, the Appellate Division, First Department, addressed whether property owner was entitled to a defense and indemnity in an underlying personal injury action brought by a tenant of the insured’s premises.  The underlying personal injury action by a tenant arose from a slip and fall in the kitchen. Tower denied coverage under a homeowner’s policy, and brought a declaratory judgment action for a determination that it did not have a duty to defend or indemnify the property owner, Brown. The homeowner’s insurance policy included a specific exclusion for bodily injuries which occur at a location where Brown did not reside.  

 Tower moved for summary judgment in the trial court, which included an affidavit from the liability examiner. The liability examiner attested to speaking with the property owner who admitted he had not resided at the premises since 2008, which was two years before the tenant’s accident. Although the trial court found Tower made a prima facie showing that it was entitled to summary judgment, the court found that the co-defendant tenant raised an issue of fact by arguing that discovery may lead to admissible evidence sufficient to defeat Tower’s motion. Specifically, the trial court found the tenant should be able to depose both the investigator that spoke with property owner Brown, and Brown himself to determine his residency status at the time of the accident.

 In reversing the trial court’s finding, the Appellate Division held that the investigator’s affidavit attesting to Brown’s claim of not residing at the premises since 2008 constituted admissible evidence sufficient to support Tower’s prima facie showing for summary judgment. The court further noted that the tenant’s challenge to the truthfulness of the investigator’s affidavit was insufficient to raise any issues of material fact or that tenant should be entitled to depose the investigator or Brown.  

 This analysis by the First Department follows a tradition by other New York Appellate courts supporting exclusions when the property owner does not reside at the premises where the accident occurred. See Metropolitan Property & Cas. Ins. Co. v. Pulido, 710 N.Y.S.2d 375, 378, (N.Y.A.D. 2 Dept.,2000) (“The policy cannot be read to provide coverage to a location where the insured did not reside, even if they owned such premises”); Marshall v. Tower Ins. Co. of New York, 845 N.Y.S.2d 90, 91, 44 A.D.3d 1014, 1015 (N.Y.A.D. 2 Dept.,2007) (“As the parties do not dispute that the plaintiff, the named insured under the policy, did not reside at the subject premises, the [insurer] … properly concluded that the subject premises were not covered under the policy and properly disclaimed on that basis”); Walburn v. State Farm Fire and Cas. Co., 626 N.Y.S.2d 315, 317, 215 A.D.2d 837, 839 (N.Y.A.D. 3 Dept.,1995)(“As the evidence submitted clearly establishes that Robert Krucina did not reside at the Browntown Road property at the time of the accident, we find that summary judgment was properly granted”).

Thanks to Daniel Beatty for his contribution.

For more information, contact Denise Fontana Ricci at