In Sanchez v. Tower Ins. Co. of NY (Sup Ct, NY County, January 3, 2006, Index No. 601433/04), the Dwelling Package Policy issued to the plaintiffs by defendant Tower contained the an exclusion.
Tower asserted that the underlying personal injury claim was not covered under this policy because at the time of the alleged accident, the insureds no longer resided at the Brooklyn address cited in the policy, but had moved to Florida.
Although the plaintiffs admitted that they had moved to Florida, they contended that the Brooklyn address was a secondary residence, given the fact that they "frequently visit their relatives, who reside in the Premises, for one and one half to two months at a time each year" (id. at 3).
The court found that this allegation was "insufficient to support a finding that the Brooklyn address remained a viable residence for the Sanchezes" as they "have alleged, at best, that they have made lengthy visits to the premises, but they do not contend that they have resided in the household with any degree of permanence or intent to remain indefinitely" (id.).
The court concluded that thus, "the Brooklyn address listed on the insurance policy did not constitute the Sanchez's residence such that the Sanchezes were covered by the insurance policy at issue," and granted Tower's motion for an order declaring that it was not liable to defendant or to indemnify the plaintiffs in the underlying action (id., at 4-5).