Kamenov v. Northern Assurance Company of America

• Decision Date: 19 March 1999
• Citation: 687 N.Y.S.2d 838,259 A.D.2d 958
• Parties: LILLIAN KAMENOV, Respondent,<BR>v.<BR>NORTHERN ASSURANCE COMPANY OF AMERICA, Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

259 A.D.2d 958

687 N.Y.S.2d 838

LILLIAN KAMENOV, Respondent,

v.NORTHERN ASSURANCE COMPANY OF AMERICA, Appellant. (Appeal No. 1.)

Decided March 19, 1999.

Present €” Green, J. P., Pine, Wisner, Pigott, Jr., and Balio, JJ.

Judgment unanimously reversed on the law without costs and new trial granted.

Memorandum:

Plaintiff commenced this action after defendant rejected a fire loss claim submitted by her under her homeowner's insurance policy. In its answer, defendant asserted as affirmative defenses that the fire was caused by arson procured by Kamen Kamenov (Kamenov), plaintiff's husband and agent, and that plaintiff was not entitled to coverage because of intentional misrepresentation of material facts in the policy application and examinations under oath of plaintiff and Kamenov. The parties stipulated at trial that the fire was caused by arson, and defendant presented undisputed testimony that the arsonist was Eddie Mance, who died of smoke inhalation at the scene. The jury rendered a verdict in favor of plaintiff. We reverse the judgment and grant a new trial.

Supreme Court erred in permitting Kamenov to testify, over defendant's objection, that he had never been prosecuted for arson. That was error. Evidence of nonprosecution is inadmissible in a civil action (see, Bazza v Banscher, 143 AD2d 715, 716; see also, Kelly's Auto Parts, No. 1 v Boughton, 809 F2d 1247, 1252-1253; Goffstein v State Farm Fire & Cas. Co., 764 F2d 522, 524). The court also erred in refusing to permit a defense witness to testify that Kamenov stated that he would give money to her for the children of Eddie Mance. That testimony fell within the admission exception to the hearsay rule. Although equivocal, Kamenov's statement indicated a consciousness of guilt (see, Bazza v Banscher, supra, at 716; see also, People v Bennett, 79 NY2d 464, 470), and the testimony was relevant to establish a relationship between Mance and Kamenov. Additionally, the court erred in precluding defendant from reading into evidence portions of the examinations under oath of plaintiff and Kamenov on the insurance claim. That evidence was relevant with respect to defendant's affirmative defense that plaintiff or her agent intentionally misrepresented material facts at their examinations under oath, thus invalidating the policy (see, Leon Sylvester, Inc. v Aetna Cas. & Sur. Co., 227 AD2d 212, lv dismissed in part and denied in part 89 NY2d 914; see also, Dlugosz v Exchange Mut. Ins. Co., 176 AD2d 1011, 1012-1013).

We conclude, however, that the court properly precluded the testimony of a witness that, on the night before the fire, Mance told him that Kamenov asked Mance to set fire to the property at Woltz and Sycamore. Double hearsay is admissible only if each hearsay statement falls within an exception to the hearsay rule (see, 2 McCormick on Evidence § 324.1, at 368 [4th ed 1992]; see, e.g., O'Connor v Incorporated Vil. of Port...