Almonte v. Castlepoint Ins. Co

In Almonte v. Castlepoint Ins. Co. (45 Misc 3d 1218[A] 2014 NY Slip Op 51624[U] (Table) [Supreme Court, New York County 2014]), the Supreme Court, in addressing a similar issue, found that the insurer made a sufficient prima facie showing "that the insured premises is three-family residence that does not qualify for coverage." In Almonte, the policy defined the "residence premises," as a "one family dwelling ... where you reside" and "a two-family dwelling where you reside in at least one of the family units." Thus, according to the Court, "to be eligible for coverage, the insured premises must be a one or two family owner occupied home, but not a three-family home" (2014 NY Slip Op 51624[U] at 3). In finding that the insurer met its burden, the Court cited to an affidavit from the insurer's adjuster, who stated that his inspection revealed that "the Premises was a three-family home with three separate living units" "on the first and second floors, as well as one in the basement," and that "each of the three living units contained its own kitchen, bathroom and living area . . . an interior staircase leading to the basement, and the remains of the basement apartment, including the bathroom and a portion of the kitchen" (id. ). The Court next cited to an affidavit from the insurer's investigator, wherein he stated that "[e]ventually the identity of the basement tenant was revealed to be a woman named Beyerliz Fernandez, whom he interviewed on March 4, 2011," and she "stated that, at the time of the Loss, she was residing in the basement of the Premises," and that the basement contained its own kitchen and bathroom" (id.). Further, "the basement tenant had keys to the front door of the house, and keys to the back," and that "the tenant could get to her apartment by going down stairs'" (id.). Thus, according to the Court, the "affidavits from defendant's adjuster and investigator establish that the plaintiffs' premises contained a third and separate dwelling unit in the basement, which renders it a three-family dwelling not covered under the policy" (2014 NY Slip Op 51624[U] at 4).