Castlepoint Ins. Co. v Santana

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Castlepoint Ins. Co. v Santana 2012 NY Slip Op 30532(U) February 29, 2012 Supreme Court, New York County Docket Number: 116171/10 Judge: Jeffrey K. Oing Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 31612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JEFFREY K. OlNG J.S.C. PRESENT: PART, 44) JusUce I Index Number' 118171/2010 CASTLEPOINT INSURANCE COMPANY vs. SANTANA, WANDA SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION SEQ. NO. DEFAULT JUDGMENT Tho following papen, numbered I to Notlcs of MotlonlOrdsrto Show Cause A n 8 W O r h Q Affldmvlta - Exhlbb ,were h a d on thlr motlon tolfor -AMdaviG -Exhibits IN O W Iw4. INO(@). Rsplylng Affldavlb Upon the foregolng papers, It Is ordered that thls motlon Is I I I 7hb motlon Is declded In accordance with the annexed declsfonand order of the Court.E NFW YORK COUNTY CLERK'S OFFICE 9 J.S.C. ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION 19: 0QRANTED DENIED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 1. CHECK ONE: DO NOT P O W W O N - F I N A L DISPOSITION 0QRANTEDINPART *E, 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENqE .. . [* 2] CASTLEPOINT INSURANCE COMPANY, Plaintiff, Index No.: 116171/10 -againstMtn Seq. No.: 001 WANDA SANTANA, EDDIE APONTE, A N W L OLIVO and LISA OLIVO, Defendants. DECISION AND ORDER FILED Castlepoint Insurance Company ( Castlepoint ), moves, pursuant to 3215, for a default judgment against defendant insured, Wanda Santana ( Santana ), and, pursuant to CPLR 3212, against the remaining three defendants, Eddie Aponte ( Aponte ), Angel Olivo, and Lisa Olivo (collectively referred to a s the "olive defendants ), f o r an order declaring that it has no duty to defend or indemnify Santana in a n underlying personal injury injury action ). Aponte cross moves for summary judgment seeking a Baokground Castlepoint issued a homeowners insurance policy to Santana for a two family house in Staten Island that she allegedly owned [* 3] Page 2 of Index No.: 116171/10 5 M o t . S e q . No.: 001 located at 59 Ada Drive (the "premises"). The policy was in effect during the relevant period of time. Santana rented the upstairs apartment to the Olivo defendants. Aponte, defendant Lisa Olivo's father, commenced the underlying personal i n j u r y action against Santana alleging that on February 13, 2010 he injured himself when he slipped on ice that had formed on the premises' exterior front stairway, and fell down the stairway. Aponte also named the Olivo defendants as defendants in the underlying personal injury action. Pursuant to a disclaimer notice, dated May 17, 2010, Castlepoint disclaimed coverage f o r the underlying personal injury action (Moving Papers, Aptman Aff., Ex.D). It provided in the disclaimer the following basis for denying coverage: Our investigation indicates that [Aponte] is the father of one of your tenants and was at the premises visiting his daughter when he fell. Our investigation reveals that you did not reside at 59 Ada Drive, Staten Island, New York on the date of l o s s . Since you did not reside at the subject premises on the date of loss, it is not a "residence premises" and thus does not qualify as an "insured location" as defined in the policy f o r this matter. As this matter involves injuries or damages arising out of the rental of premises that is not an "insured location," no coverage is available for this matter as set forth in the above-cited provision. (L). Nonetheless, Castlepoint provided Santana with a defense of the underlying personal injury action pending resolution of a declaratory judgment action. This action.ensued. [* 4] Index No.: 116171/10 M o t . S e q . No.: 001 Page 3 of 5 Diacuasion To begin, given that Castlepoint named Aponte and the Olivo defendants as defendants in this declaratory judgment action, these individuals have standing to challenge Castlepoint s disclaimer. Indeed, Aponte and the Olivo defendants are within the zone of interest protected by Insurance Law § 3420 (& Utica Ins. Co. v RJR Maipte nance Gsoun, Inc., 90 Ad3d 554, 555 [ l s tDept 20111 ) . against Santana, although Castlepoint appears to have satisfied the requirements set forth in CPR 3215, the instant record compels a different outcome. defendant. Here, Santana is not t h e sole Aponte, as a named defendant, has cross moved f o r summary judgment ¬or a declaration that the disclaimer is invalid, and that Castlepoint has to provide a defense and indemnification to Santana in the underlying personal i n j u r y action. Thus, under these circumstances, if this C o u r t were to grant the motion for a d e f a u l t judgment, then the action would be concluded in the sense that Castlepoint would prevail with respect to the declaration it seeks herein. That result is not sustainable without resolving Aponte s cross-motion, and Castlepoint s motion seeking summary judgment against Aponte and the Olivo defendants. With regard to Castlepoint s motion f o r summary judgment, it [* 5] Page 4 of Index No.: 116171/10 Mot. S e q . No.: 001 5 relies on the affidavit of Mark Nucci, its investigator, to establish that Santana did not reside at the premises during the relevant period. Nucci states that he "obtained a statement from CastlePoint's insured, Wanda Santana . . . regarding an alleged accident that occurred on February 13, 2010 (Nucci Aff., July 18, 2011, ¶ 2). He then states: On or about May 5, 2010, 1 transcribed a statement from a person who identified herself as Wanda Rodriguez Santana, setting forth her knowledge of the accident. Santana read the statement a n d signed the bottom of each page to attest to its accuracy. Annexed hereto as Exhibit "A" is a copy of Santana's statement, redacted by CastlePoint's attorneys to omit material that is irrelevant to the within coverage action. Castlepoint's reliance is misguided. To begin, the statement is evidentiarily insufficient because it is unsworn. Further, absent from the record is any proof to establish that Nucci's transcription is accurate. Indeed, there are several alterations and edits throughout the statement. As if these evidentiary shortcomings were not enough to warrant denial of the motion, two p a g e s of the statement are redacted because Castlepoint's attorneys took the position that they are is generally reserved for judicial scrutiny. Such redactions, standing alone, provides a sufficient basis f o r this Court to conclude that Castlepoint has failed to carry its prima facie [* 6] Index No.: 116171/10 M o t . S e q . No.: 001 burden on its motion for summary judgment. Page 5 of 5 Similarly, contrary to Aponte's counsel's argument, the record demonstrates sharp factual d i s p u t e s a s to whether the premises can be deemed Santana's residence pursuant to the homeowners insurance policy. Accordingly, it is ORDERED that Castlepoint's motion for a default judgment against Santana is d e n i e d ; a n d it is further ORDERED t h a t that branch of the motion and the cross-motion for summary judgment are denied. Counsel are directed to telephone Part 48 at 646-386-3265 to schedule a status conference. NEW YORK COUNTY CLEHK'S OFFICE

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