Zises v New York Cent. Mut. Fire Ins. Co.

Zises v New York Cent. Mut. Fire Ins. Co. 2014 NY Slip Op 02770 Decided on April 23, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 23, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2012-03320
(Index No. 556/11)

[*1]Robert Zises, appellant,

v

New York Central Mutual Fire Insurance Company, respondent.




Robert Zises, Tivoli, N.Y., appellant pro se.
Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC,
Buffalo, N.Y. (Marco Cercone and David
J. Simoni of counsel), for
respondent.


DECISION & ORDER

In an action to recover damages for breach of a homeowner's insurance policy, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated January 10, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant insurer established, prima facie, that it properly disclaimed coverage under a homeowner's insurance policy on the ground that the plaintiff did not live at the covered property at the time of the subject 2005 fire. The defendant's denial of coverage was properly based on the terms of the homeowner's policy, coupled with the plaintiff's misrepresentation that, in 2005, he "occupied" the subject premises "on a full-time basis" (see Vela v Tower Ins. Co. of N.Y., 83 AD3d 1050; Milgrim v Royal & SunAlliance Ins. Co., 75 AD3d 587; Marshall v Tower Ins. Co. of N.Y., 44 AD3d 1014; Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557,562). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court