2619 REALTY, LLC v. Fidelity and Guaranty Insurance Company
| Decision Date | 25 March 2003 |
| Citation | 756 N.Y.S.2d 564,303 A.D.2d 299 |
| Parties | 2619 REALTY, LLC, Respondent,<BR>v.<BR>FIDELITY AND GUARANTY INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Defendant Fidelity and Guaranty Insurance Company (Fidelity) issued a "Lead-Based Paint Liability Insurance Policy" (the Policy), covering the relevant time period, under which plaintiff 2619 Realty, LLC (2619 Realty) is listed as an additional insured. Michael Marcial, an infant, by his mother and natural guardian, Ignacia Pacheco, commenced the underlying lead-paint poisoning/negligence action by the service of a summons and verified complaint on or about October 26, 1999. In the underlying action, Marcial contends, inter alia, that 2619 Realty owned the apartment in question when the infant visited and ingested lead paint. Fidelity subsequently disclaimed coverage on the ground that the Policy afforded lead-based paint bodily injury coverage to "tenants" and that Marcial was not a tenant as that term is defined in the Policy. This declaratory judgment action ensued.
A tenant is defined in the Policy as "anyone who is lawfully residing in a leased unit or apartment of the insured building * * *." The Policy further provides that "[a] person is lawfully residing in a unit or apartment if: a) He or she is in compliance with the terms of a written lease with the named insured; and b) He or she is a permanent resident of such unit or apartment during the term of the lease." A permanent resident "means anyone lawfully residing in a unit or apartment as his or her sole dwelling." The Policy does not define "sole dwelling."
Fidelity, in disclaiming coverage and in moving for summary judgment, argued that the infant plaintiff was not a permanent resident of the apartment as that term is defined in the Policy. Fidelity relied upon the plaintiff's own pleadings in the underlying action, which state that the infant only "on occasion[s] stayed" at the insured building, and that the infant plaintiff was a primary resident in another building owned by a defendant in the underlying action. Plaintiff cross-moved for summary judgment, asserting that the phrase "sole dwelling" was undefined and indefinite in scope and as a result, an ambiguity exists as to whether the infant was a tenant under the terms of the Policy. The motion court held, inter alia, that "the undefined term of sole dwelling creates possible interpretation [sic] which cannot as a matter of law, exclude coverage." We disagree and reverse.
Our analysis must be guided by the well-established principles governing the interpretation of insurance contracts, which provide that the unambiguous provisions of an insurance policy, as with any written contract, must be accorded their plain and ordinary meaning (West 56th St. Assoc. v Greater N.Y. Mut. Ins. Co., 250 AD2d 109, 112 [1998]; ...
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