Hermitage Ins. Co. v. LaFleur

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: TOM
• Citation: Hermitage Ins. Co. v. LaFleur, 100 A.D.3d 426, 953 N.Y.S.2d 209, 2012 N.Y. Slip Op. 7407 (N.Y. App. Div. 2012)
• Decision Date: 08 November 2012
• Parties: HERMITAGE INSURANCE COMPANY, Plaintiff–Respondent, v. Joe Kevin LaFLEUR, et al., Defendants–Appellants, Malcom Dookie, Defendant.

100 A.D.3d 426

953 N.Y.S.2d 209

2012 N.Y. Slip Op. 07407

HERMITAGE INSURANCE COMPANY, Plaintiff–Respondent,

v. Joe Kevin LaFLEUR, et al., Defendants–Appellants,Malcom Dookie, Defendant.

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

Nov. 8, 2012.

Pearlman, Apat, Futterman, Sirotkin & Seinfeld, LLP, Kew Gardens (Gilbert J. Serrano of counsel), for appellants.

Max W. Gershweir, New York, for respondent.

TOM, J.P., SWEENY, ACOSTA, DeGRASSE, RICHTER, JJ.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 14, 2011, declaring that plaintiff is not obligated to defend or indemnify defendants LaFleur and Naraine (defendants) in the underlying personal injury action, unanimously affirmed, without costs.

Defendants do not deny that the building they described as a two-family dwelling in their application for commercial general liability insurance contains three apartments. In response to plaintiff's claim of a material misrepresentation entitling it to disclaim coverage, defendants point to the certificate of occupancy issued in 1967, which permits use and occupancy by two families, and the New York City tax assessment roll for the last five years, which indicates that the building is a “two family converted from one family.” Defendants argue that “most people” would understand the question “# Families” on the insurance application to be asking whether the premises is “a legal two family, which it is.”

Contrary to defendants' argument, the only reasonable interpretation of the question “# Families” is that it seeks the number of separate dwelling units in the building ( seeMultiple Dwelling Law § 4[6], [7] ). The import of the 1967 certificate of occupancy and the tax assessment roll...