Azzato v Allstate Ins. Co.
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Azzato v Allstate Ins. Co. 2011 NY Slip Op 33674(U) September 6, 2011 Sup Ct, Suffolk County Docket Number: 07-38669 Judge: Peter H. Mayer 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. [* 1] INDEX No. CAL. No. 07-38669 09-020800T SL PREME COURT - STATE OF NEW YORK I.A.S. PART 17 - SUFFOLK COUNTY PRESENT: Hon. ¬ E ER H. MAYER Justice of the Supreme Court ____________________-------.-----------------------------------RAYMOND AZZATO and TRICIA WILLIAMS ON, MOTION DATE 4-15-1 1 ADJ. DATE 4-15-11 Mot. Seq. # 003 - MD X DOUGLAS J. LEROSE, ESQ. Attorney for Plaintiffs 3 I Roberta Lane Syosset, New York 11791 Plaintiffs, - against - AI,L,STATE INSURANCE COMPANY, Defendant. : FELDMAN RUDY KIRBY & FARQUAHARSON Attorney for Defendant 4 10 Jericho Turnpike, Suite 3 15 Jericho, New York 1 1753 X Upon the reading ;and filing of the following papers in this matter: (1) Notice of MotioidOrder to Show Cause by the plaintiffs Raymond Azzato arld Tricia Williamson, dated March 16. 20 1 1, and supporting papers (including Memorandum of Law dated -); (2) Affirmation in Opposition by the defendant Allstate Insurance Company, dated March28. 201 1 and supporting papers; and now UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that the motion by defendant Allstate Insurance Company for leave to reargue its prior motion for sunim ary judgment dismissing the complaint against it. which was granted by order of this Court dated June ?.2010, is granted: and it is further ORDERED that, upon reargument, the motion for sumnary judgment disniissing the coniplaint against defendant AllsLal e Insurance Company is denied. I n this action, plaintiffs Raymond Azzato and his wife, Tricia Williamson, seek reimbursement under a policy of insurance for damage to their rental property and its contents caused by a fire on December 20. 2005. At Ihe time of the loss, the property. occupied by non-party Willie DeAngelis. was covered by a Landlord s Package Policy issued by defendant. Allstate Insurance Company ( Allstate ). l lie policy names both plaintiffs as insureds. The complaint. alleges. inter alia, that despite providing Allstate with timely notice of the loss, it has wrongfully denied liability under the policy and declared that it would not pay for any part of the loss. On or about December 1, 2009, Allstate submitted a motion for [* 2] Azzato \ Allstate Index No. 07-38669 Page 2 s u ~ i m a judgment disnii ssing plaintiffs' complaint. A reviecx of the moving papers and the Court's i~ computerized records did not reveal the submission of any papers opposing the motion. Therefore, the Court considered Allstate's moving papers and by order dated June 7. 20 10. the motion dismissing plaintiffs' complaint was granted. Subsequently, on August 26. 20 10, the parties entered a stipulation, uhich was so ordered by the Court, acknowledging that plaintiffs submitted papers in opposition to Allstate's motion, that said papers were erroneously omitted from the papers considered by the Court, that the previous order and notice of entry be vacated and stricken. and that the motion containing a complete set of the parties' papers be reconsidered. Allstate moves for summary judgment dismissing the complaint on the ground that neither of the plaintiffs are entitled to coverage under the terms and conditions of the subject policy. Specifically. Allstate argues Raymond Azzato's submission of altered receipts from P.C. Richards and Son overstating the cost of household appliances allegedly damaged during the fire violated the insurance policy's fraud and concealment clause and disqualified his claim. Allstate also argues that under the terms of the agreement. its liability under the policy, if any, cannot exceed 50% of the value of the property since Mr. Azzato only possesses an insurable interest of 50% of the premises and his business partner owns the remaining 50% interest. Allstate further asserts that Tricia Williamson is not entitled to recover under the policy as she failed to demonstrate that she held an insurable interest in the property or its contents at the time of the loss. In opposilion, plaintiffs argue the motion should be denied as triable issues exist as to whether plaintiff Raymond Azzato attempted to engage in fraudulent conduct, and whether his wife, Tricia Williamson, held an insurable interest in the property as one of the mortgagors of the subject premises. Plaintiffs further argue that denial of coverage would be unconscionable since plaintiff Raymond Azzato's insur,snce agent failed to explain that Allstate's liability under the policy would not exceed 50% of the value of the subject premises. It is well settled that on a motion for summary judgment the function of the court is to determine whether issues of fact ex Ist and not to resolve issues of fact or determine matters of credibility (see Doize v Holida-y Inn Ronkonkonza, 6 AD3d 573,774 NYS2d 792 [2d Dept 20041). On such a motion the coui-t should draw all reasonable inferences in favor of the non moving party and should not pass on issues of credibility (see S.J. Caprlin Assocs. Inc., v GlobeMfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]; Rizzo v Lincoln Diner Corp..,2 15 AD2d 546, 626 NYS2d 280 [2d Dept 19951). The "C'oncealnierit and Fraud provides as follows: '' clause contained within Allstate's Landlords Package Policy Allstate has the right to cancel or non-renew your policy if it was obtained by fraud, material misrepresentation, or concealment of material facts, or if you inten1ioiially conceal any material facts or circumstance before or after a loss. Furthermore. Allstate does not cover you or any other person insured under this policy who has concealed or misrepresented any material f x t or circumstance, before or after a loss. I Iere. Allstate established its prima facie entitlement to summary judgment dismissing the [* 3] complaint b demonstrating plaintiff Raq niond Azzato breached the fraud and concealment clause (of its ! p o l i q . and that it. therefin. was entitled to cancel the policq and disclaim an\. c o erage sought ~ thereunder ( \eci Deitscli Testiles v New York Prop. Ins. Utiderwrititzg Assti.. 63 NY2d 999.479 NYS2d 487 [ 198-1.J: Suks & Co. v ContinentcrlItzs. Co.. 23 NY2d 161. 295 NYS2d 668 [1968]: Latlra Rest. Cory. v Tower Ins. Co., 38 AD3d 321, 831 NYS2d 41 1 [lst Dept 20071). Significantly, Allstate proffered an affidavit by the treasurer of P.C. Richards and Sons Long Island Corporation. Kevin Hughey, stating that the receipt submitted by plaintiffs listing the total price of the household appliances allegedly lost during the fire as $7,000 grossly overvalued the cost of the claimed property. Mr. Hughey f~irtlier provided a copy of the electronic record of the sale of the items maintained by the store indicating that the actual cost of the appliances purchased by Raymond Azzato was $2,000. However. in opposition, plaintiffs submit, among other things, the affidavit of Tricia Williamson wherein she states she will suffer damage and pecuniary loss if the policy is disclainied because she furnished the premises with a family heirloom dining room set and is personally liable for a line of credit secured by her primary resiidence that was used to purchase the subject premises. While the production of false, spurious and altered documents in support of an insurance claim serves to vitiate the policy and bars recovery thereunder (see Deitsch Textiles v New York Prop. Ins. Underwriting Assn., 62 N W d 999,479 NYS2d 487 [1984]; Saks & Co. v ContinentalIns. Co., 23 NY2d 161,295 NYS2d 668 [ 1968]), New York has adopted the rule that as a matter of fairness and equity . . . the independent wrongdoing of one insured should not bar recovery as to the coinsured (Reed v Federal Ins. Cu., 71 NY2d 581. 588, 528 NYS;!d 355 [1983]). Moreover, an interest, legal or equitable. in the pr0pert.y burned is not necessary to support an insurance upon it . . . it is enough if the assured is so situated as to be liable to loss if it be diestroyed by the peril insured against . . . as will cause the insured to sustain a direct loss from its destruci.ion [so] . . . that a loss of the property will cause pecuniary damage to thle f holder of the right against it (Scarola v Ins. Cu. o N. A.M., 3 1 NY2d 41 1,413, 340 NYS2d 630 [1972]; ,ee Etterle v Excelsior IHS.Cu. o N. Y. , 74 AD2d 436,428 NYS2d 95 [4th Dept 19801). Therefore. f inasmuch as Ms. Williamson has submitted evidence that she will suffer pecuniary loss as a result of Allstate s disclaimer and no evidence has been submitted indicating that she participated in her husband s alleged wrongdoing, triable issues exists as to whether she held an insurable interest in the subject premises at the time of the fire, and whether she should be covered to the extent of that interest. With regard to thz jssue of plaintiffs insurable interest in the subject premises, the agreement states. in pertinent part, that [;In the event of a covered loss, [Allstate] will not pay for more than an insured person s insurable interest in the property covered, nor more than the amount of coverage afforded by this policy . Plaintiffs allege that this language is ambiguous as it fails to notify them that coownership of the premises by their business partner limits Allstate s liability under the insurance policy to 50% of the value of the subject premises. Plaintiffs also submit an affidavit by their insurance broker stating that he did not know nor did he inform plaintiffs of the meaning of the provision. It is well settled that any ambiguity in an insurance policy must be resolved against the insurer and in favor of the insured (see Lavnnant v Genernr Acc. Ins. Co. ofA.m., 79 NY2d 623, 584 NYS2d 744 [1992]; Aetna Cas. & Sur. Co. v Get?. Cas. Co. cfA.m., 285 AD 767, 140 NYS2d 670 [lst Dept 19551). However, where as in this case, the intent of the parties to be bound by an agreement must be determined by disputed evidence or inferences outside the written words of the instrument, a question of fact is presented (see A s l z h d [* 4] Azzato Allstate Index No. 07-38669 Page 4 7 1 'Vlgt. iifmien. 82 NY2d 395, 401. 604 NYS2d 912 119931). Thus. triable issues exist as to whether the parties had a meeting of the minds as to this portion of the agreement and mhetlier Allstate mas justified in limiting its liability to no more than 50% of the value of the subject premises. Accordingly, the motion is denied. PETER H. MAYE&, J.S.C
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