TOWER INS. CO. OF N.Y. v. HOSSAIN, 134 A.D.3d 644 (2015)
Court: Supreme Court of New York
Number: innyco20151229220
Visitors: 5
Filed: Dec. 29, 2015
Latest Update: Dec. 29, 2015
Summary: The motion court correctly found that plaintiff established prima facie that it had no obligation to defend or indemnify defendant Hossain in the underlying personal injury action by showing, pursuant to an exclusion in his homeowners policy, that Hossain did not reside at the premises when the accident happened. As the court recognized, the affidavit by plaintiff's insurance investigator stating that Hossain admitted that he had not resided at the premises since November 2008, nearly a year and
Summary: The motion court correctly found that plaintiff established prima facie that it had no obligation to defend or indemnify defendant Hossain in the underlying personal injury action by showing, pursuant to an exclusion in his homeowners policy, that Hossain did not reside at the premises when the accident happened. As the court recognized, the affidavit by plaintiff's insurance investigator stating that Hossain admitted that he had not resided at the premises since November 2008, nearly a year and ..
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The motion court correctly found that plaintiff established prima facie that it had no obligation to defend or indemnify defendant Hossain in the underlying personal injury action by showing, pursuant to an exclusion in his homeowners policy, that Hossain did not reside at the premises when the accident happened. As the court recognized, the affidavit by plaintiff's insurance investigator stating that Hossain admitted that he had not resided at the premises since November 2008, nearly a year and a half before the accident occurred, is admissible for the purpose of showing his non-residence when the accident occurred, and, by defaulting in this action, Hossain is deemed to have admitted the allegation in the complaint that he did not reside at the premises at the relevant time. The court erred in finding that defendant Singletary, a tenant in the premises and the plaintiff in the underlying action, established that discovery might lead to evidence that would defeat plaintiff's motion (see Atomergic Chemetals Corp. v Hartford Acc. & Indem. Co., 193 A.D.2d 551 [1st Dept 1993]).
Source: Leagle
