Feinman v. Consolidated Mut. Ins. Co.

• Decision Date: 28 May 1956
• Citation: 155 N.Y.S.2d 326
• Parties: Philip FEINMAN, Plaintiff, v. CONSOLIDATED MUTUAL INSURANCE COMPANY, Defendant.
• Court: New York City Municipal Court

Page 326

155 N.Y.S.2d 326

Philip FEINMAN, Plaintiff, v. CONSOLIDATED MUTUAL INSURANCE COMPANY, Defendant.

Municipal Court of City of New York, Borough of Bronx Second District.

May 28, 1956.

George Nodelman, New York City, for plaintiff.

Bernard Helfenstein, Brooklyn, for defendant, Abraham S. Bernstein, Brooklyn, of counsel.

WACHTEL, Justice.

This is a motion by the defendant for summary judgment. Plaintiff also requests summary judgment in his favor. Plaintiff sues herein pursuant to Section 167 of the Insurance Law to recover the sum of $800 which includes the amount of a judgment in the sum of $500 and attorney's fees in the sum of $300. The judgment of $500 was recovered by Helen Cavanagh and Thomas Cavanagh against the plaintiff herein, Philip Feinman.

The facts are that on September 4, 1951, plaintiff herein became the owner of property located at 1315 East Tremont Avenue in the Borough of Bronx, City of New York, and a policy of insurance theretofore issued by defendant was assigned to him by endorsement. The policy expired on May 20, 1952. On April 24, 1952 the plaintiff sold the premises to the Pleasantville Realty Corp. The closing of title on the sale of the property took place on the said date, April 24, 1952 at about 2:00 p. m. The contract of sale which culminated in a deed of the property included the pro-rating and assignment of the aforementioned policy of insurance as of midnight, April 23, 1952. This endorsement was made effective as of that time, and the Pleasantville Realty Corp. became the new assured as of 12:01 a. m., April 23, 1952.

Thereafter, at 11:00 p. m. on April 24, 1952, an accident occurred in which Mrs. Helen Cavanagh, who had been employed by the plaintiff as superintendent of the premises while the plaintiff was the owner thereof, was injured in the premises. She sued for personal injuries the Pleasantville Realty Corp., and the defendant undertook to provide coverage. Thereafter, Mrs. Cavanagh commenced an action against Philip Feinman, the plaintiff herein, for the same cause of action, and subsequently both of these cases were consolidated. When plaintiff was served with the summons and complaint in the said personal injury action brought by Helen Cavanagh, he requested the defendant to cover him, but defendant refused to do so on the ground that no valid contract of liability insurance was in existence with him.

The consolidated personal injury action of Cavanagh v. Feinman and Pleasantville Realty Corp. came on for trial and the Consolidated Mutual Insurance Company, the defendant herein, settled the case on behalf of Pleasantville Realty Corp. for a nominal sum. A consent judgment was entered by the plaintiff, Cavanagh, against Philip Feinman in the sum of $500. Feinman alleges he paid $300, attorney's fees, for the defense of that action, and these attorney's fees are also sued for in this action. The plaintiff in the personal injury action, Helen Cavanagh, was not an employee of the new owner, the Pleasantville Realty Corp., her services having been terminated on April 23, 1952, the day immediately preceding the closing of title to Pleasantville. At the time of the occurrence, the plaintiff Feinman no longer owned the property, but he contends that he was covered under the terms of the policy even though the accident occurred after he ceased being the owner.

By the terms of the policy, the defendant Consolidated Mutual Insurance Company agrees 'to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the care, maintenance or operation of premises insured.'

The plaintiff contends that the personal injury action of Helen Cavanagh is controlled by the law as set forth in Pharm v. Lituchy, 283 N.Y. 130, 27 N.E.2d 811, 812. According to this decision, while an owner of land ceases to be liable in negligence for its condition when the premises pass out of his control before injury results, Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397, there is an exception to this rule to the effect that where a nuisance exists on the premises, within the purview of the Multiple Dwelling Law the 'liability of the owner * * * persists beyond conveyance at least until the new owner has had reasonable opportunity to discover the condition on prompt inspection and to make necessary repairs.' Plaintiff argues that the closing took place at 2:00 p. m., the accident occurred at 11:00 p. m., and there was no opportunity for the buyer to inspect and repair any defects, and, accordingly, the former owner, namely, Philip Feinman was liable. The plaintiff further argues that the rule of construction in respect to policies of insurance is that they are to be construed liberally in favor of assureds and strictly against the carriers. American Employers' Ins. Co. v. Globe Air Craft Specialties, 205 Misc. 1066, 131 N.Y.S.2d 393. The policy in this case did not as in Troy v. London & Lancashire Ind. Co. of America, Sup., 129 N.Y.S.2d 84, specifically apply only to accidents during the policy period, and, accordingly, the defendant is liable under the terms of the policy.

In the words of Judge Crane, in Marcus v. United States Casualty Co., 249 N.Y. 21, at page 24, 162 N.E. 571, at page 573, 'Policies of insurance, when capable with equal reason of one or more interpretations are construed against the insurer and in favor of the insured. Stipcich v. Metropolitan Life Ins. Co. 48 S.Ct. 512, 72 L.Ed. [895]. This is upon the theory that the insurance company generally drafts the terms of the instrument.'

This rule is not applied in cases where the risk 'has been expressly excluded by the terms of the contract', Crane, J., Marcus v. United States Casualty Co., supra, 249 N.Y. at page 25, 162 N.E. at page 573. Thus, in the Marcus case, where the policy expressly excluded loss arising from bodily injury sustained by reason of the operation of any elevator, or the shaft or hoistway, a fall down the shaft was excluded. However, there was no specific exclusion in the policy at bar ruling out specifically accidents which occurred after the conveyance of title by the insured. There is no language to the effect that the policy insured the plaintiff only so long as he retained title to the premises. In respect of the coverage as to property damage, the defendant specifically excluded damage resulting from 'rain or snow admitted directly to the building interior through defective roofs, leaders or spouting, or open or defective doors, windows, skylights, transoms or ventilators, in so far as any of these occur on or from premises owned or rented by the named insured * * *.' Furthermore, the policy specifically provides that it does not apply with respect to property damage liability (Coverage B), to 'injury or destruction of property owned * * * by the insured * * * or any goods or products manufactured, sold, handled or distributed, or premises alienated by the named insured, or work completed by or for the named insured out of which the accident arises.' The same language could have been applied to Coverage A, as to bodily injury liability, but the policy fails to provide such exclusion. Furthermore, the defendant could have limited the coverage of the policy to accidents which occur solely during the policy period, as in the case of Troy v. London & Lancashire Ind. Co. of America, Sup., 129 N.Y.S.2d 84. The defendant's attorney contends that the period from an existing condition to the time when this existing condition results in an accident is not one of 'liability,' and, quoting Judge Cardozo in Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, he argues that there is no negligence, so to speak, "in the air," and that at the time the liability actually attached, the plaintiff was without benefit of an insurance policy. But the point made by Judge Cardozo has no bearing on the issue herein. Judge Cardozo simply ruled that 'negligence is not actionable unless it involves the * * * violation of a right', namely the breach of a duty to the plaintiff. It is not actionable if it involves a breach of duty owing to another. Furthermore, the law recognizes liability 'created' by statute, apart from common law negligence where the statute imposes an absolute duty for the protection of a special class of persons. Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, at pages 304-306, 200 N.E. 824, 104 A.L.R. 450. In any event, by its own argument, the defendant...