TOWER INSURANCE COMPANY OF NEW YORK v. Jose Luis Crespo, Defendant–Appellant. (2021)

Order, Supreme Court, New York County (David B. Cohen, J.), entered July 1, 2019, which granted the motion of plaintiff Tower Insurance Company (Tower) for summary judgment declaring that Tower has no duty to defend or indemnify defendants Walter Ginin or Nelly Campoverde against the claims by defendant Jose Luis Crespo in an underlying personal injury action, and dismissing Crespo's counterclaim against Tower, unanimously affirmed, without costs.

Tower made a prima facie showing that it is entitled to judgment as a matter of law based on the affidavit of its claims adjuster stating that he spoke with Ginin, who admitted, in a signed written statement, that he did not reside at the premises when the incident occurred, as required by the policy (see Tower Ins. Co. of N.Y. v. Zaroom, 145 A.D.3d 556, 44 N.Y.S.3d 32 [1st Dept. 2016];  Tower Ins. Co. of N.Y. v. Brown, 130 A.D.3d 545, 14 N.Y.S.3d 37 [1st Dept. 2015] ).  Moreover, Ginin has admitted the allegations in the complaint that he did not reside in the premises when the incident occurred in light of his default in appearing in this action (see Port Parties, Ltd. v. Merchandise Mart Props., Inc., 102 A.D.3d 539, 540, 959 N.Y.S.2d 37 [1st Dept. 2013] ).  Based on its unambiguous terms (see generally Slattery Skanska Inc. v. American Home Assur. Co., 67 A.D.3d 1, 14, 885 N.Y.S.2d 264 [1st Dept. 2009] ), the Tower policy did not provide coverage for Ginin's spouse (Campoverde) who only qualified as an insured if the named insured was a member of the same household.  The conclusory affirmation of defendant Crespo's counsel contained no evidence that at the time of Crespo's alleged incident, Ginin actually resided at the insured location where Crespo was a tenant in one of the two units, and was insufficient to raise issues of material fact or to warrant further discovery (see Tower Ins. Co. of N.Y. v. Brown, 130 A.D.3d at 546, 14 N.Y.S.3d 37).