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Metropolitan Property & Casualty Insurance Company v. Pulido6/26/2000
APPEAL by the defendants John B. Perdue, Estelle Perdue, Donna Quiles, and Pedro Quiles in an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend and indemnify those defendants in an underlying action entitled Pulido v. Perdue, pending in the Supreme Court, Suffolk County, under Index No. 31969/96, from (1) an order of the Supreme Court (W. Bromley Hall, J.), entered March 5, 1999, in Suffolk County, which, inter alia, denied the defendants' respective motions for summary judgment dismissing the complaint and granted the plaintiff's cross motion for summary judgment on the complaint, and (2) a judgment of the same court, entered March 23, 1999, which declared that the plaintiff is not obligated to defend and indemnify the defendants.
OPINION & ORDER
Argued-February 1, 2000
1336B
In this case we are asked to determine whether an insurer is obligated to defend and indemnify an insured under a homeowner's policy where the insured is not a resident of the insured premises. Under the facts of this case, we conclude that the policy at issue did not provide such coverage.
_ In February 1996, the plaintiff, Metropolitan Property & Casualty Insurance Company (hereinafter Met) issued a homeowners liability policy to the defendants John B. Perdue and Estelle Perdue insuring premises located at 1082 Joselson Avenue in Bayshore, New York (hereinafter the premises).
Under the General Definitions section of the policy, it is stated:
"INSURED PREMISES means:
1. the residence premises described in the Declarations /i.e., 1082 Joselson Avenue in Bayshore, New York/.
2. any other premises specifically named in the Declarations and used by you as a residence.
3. any premises acquired by you during the term of this policy and used by you as a residence.
4. any premises not owned by you but where you may be temporarily residing".
(emphasis in original).
The term "residence premises" is defined in the policy as "a one-family dwelling used as a private residence by you and named in the declarations and includes private structures and private approaches".
On May 21, 1996, the defendant Clara Pulido allegedly was bitten by a dog at the premises. The Perdues provided timely notice of the incident to Met. However, the Perdues did not reside at the premises at the time the policy was issued or at the time the dog bite incident took place. Instead, the Perdues resided at 29 Adams Street, Deer Park, New York, and the defendants, Donna Quiles and Pedro Quiles, the Perdues' daughter and son-in-law, resided at the premises.
On January 17, 1997, the plaintiff commenced the underlying action as a result of the dog bite she allegedly sustained while upon the premises. Met retained counsel to represent the Perdues and the Quiles, and an answer was interposed on their behalf on February 4, 1997. On June 17, 1997, Met advised the Perdues that it was disclaiming coverage in the underlying action commenced by Pulido. The letter advised the Perdues that Met had discovered that they did not in fact reside at the covered premises, but rather in Deer Park, and thus Estelle Perdue's "representation" to a Met investigator that she lived at the covered premises constituted an intentional misrepresentation of a material fact.
_ Shortly thereafter Met commenced this action against Pulido, the Perdues, and the Quiles, seeking a declaration that it was not obligated to defend or indemnify the defendants in the underlying action commenced by Pulido. Met alleged, inter alia, that 1082 Joselson Avenu
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