INTEGON NATIONAL INSURANCE COMPANY v. Mayra Encarnacion, Defendant–Appellant. (2021)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered June 18, 2020, which, inter alia, denied defendant Mayra Encarnacion's cross motion for summary judgment and granted plaintiff's motion for summary judgment declaring that it has no duty to defend or indemnify Zhong Shen Lin, as administrator and/or executor of the estate of Qi Shen Zou (a/k/a Qi Sheng Zou) in the underlying personal injury action, unanimously affirmed, without costs.

The plain language of the policy (see Westchester Fire Ins. Co. v. Schorsch, 186 A.D.3d 132, 140, 129 N.Y.S.3d 67 [1st Dept. 2020]) and the affidavit submitted by the decedent named applicant/named insured's daughter-in-law (see Tower Ins. Co. of N.Y. v. Zaroom, 145 A.D.3d 556, 557, 44 N.Y.S.3d 32 [1st Dept. 2016];  Tower Ins. Co. of N.Y. v. Hossain, 134 A.D.3d 644, 644, 24 N.Y.S.3d 10 [1st Dept. 2015]) established prima facie entitlement to summary judgment because the decedent was not alive when the policy was issued, and further discovery was not warranted.

Since, in reliance on the application, the policy was issued to a deceased person, who did not meet the definition of an insured or that the subject premises constituted a “residence premises” or an “insured location,” coverage was void from the outset and the disclaimer was not necessary (see City of New York v. Granite State Ins. Co., 136 A.D.3d 523, 524, 25 N.Y.S.3d 171 [1st Dept. 2016], lv dismissed 28 N.Y.3d 955, 86 N.Y.S.3d 430, 111 N.E.3d 324 [2016], lv denied 29 N.Y.3d 915, 2017 WL 3908089 [2017]).