Dauria v. Castlepoint Ins. Co.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: GONZALEZ
• Citation: Dauria v. Castlepoint Ins. Co., 104 A.D.3d 406, 960 N.Y.S.2d 105, 2013 N.Y. Slip Op. 1349 (N.Y. App. Div. 2013)
• Decision Date: 05 March 2013
• Parties: Linda DAURIA, et al., Plaintiffs–Respondents, v. CASTLEPOINT INSURANCE COMPANY, Defendant–Appellant, Frank Campo, et al., Defendants.

104 A.D.3d 406

960 N.Y.S.2d 105

2013 N.Y. Slip Op. 01349

Linda DAURIA, et al., Plaintiffs–Respondents,

v. CASTLEPOINT INSURANCE COMPANY, Defendant–Appellant,Frank Campo, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

March 5, 2013.

Law Office of Max W. Gershweir, New York (Jennifer Kotlyarsky of counsel), for appellant.

Aboulafia Law Firm, LLC, New York (Matthew S. Aboulafia of counsel), for respondents.

GONZALEZ, P.J., MAZZARELLI, RENWICK, RICHTER, GISCHE, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about February 7, 2012, which, to the extent appealed from, granted plaintiffs' motion for summary judgment and denied defendant CastlePoint Insurance Company's cross motion for summary judgment, unanimously reversed, on the law, without costs, plaintiff's motion denied, the cross motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action arising out of defendant CastlePoint's rescission of a homeowner's insurance policy after a fire at plaintiffs' residence, based on its determination that the premises contained a basement apartment rendering it a “three family” dwelling as opposed to the “two family” designation that was listed on the insurance application, plaintiffs' argument that they did not misrepresent the premises as a two family dwelling is contrary to this Court's recent decision in Hermitage Ins. Co. v. LaFleur, 100 A.D.3d 426, 953 N.Y.S.2d 209 [1st Dept. 2012]. There, we held that the only reasonable interpretation of the question “# Families” on an insurance application is that it seeks the number of separate dwelling units in the building.

Plaintiffs maintain that their response of “2” to this question was correct because all of the residents of the premises lived together as one “family” or “household.” However, based on plaintiffs' interpretation, the logical answer would have been “1.” Thus, even if, as plaintiffs claim, all the residents of the premises shared a single “household” in the sense of living together, the premises is a three family dwelling because of its structural configuration, i.e., three separate units, each with its own kitchen, bathroom and separate entrance.

The motion court erred in finding that CastlePoint failed to establish the materiality of the misrepresentation because three family dwellings are not included among the “unacceptable exposures” listed in its...