Eubanks v. New York Property Insurance Underwriting Association, Kings Co. Index No. 523461/2017 (NY Sup. Ct. Kings Co. 2019).
Plaintiff brought a motion to dismiss two affirmative defenses asserted by New York Property Insurance Underwriting Association in its answer. Plaintiff had sued for fire damage to a residence. The evidence developed prior to the denial of coverage by NYPIUA showed that plaintiff no longer occupied the premises and that squatters had moved in. Plaintiff had agreed, in an eviction proceeding that plaintiff had brought after discovering the squatters, to allow the squatters to remain for a specific period of time. Before the time to depart had arrived, an accidental fire damaged the property. Following the denial, plaintiff sued for coverage and NYPIUA asserted that the long period of time the squatters had occupied the premises satisfied the exclusion of a 60-day period for lack of occupancy and that by allowing the squatters to remain (NYPIUA received no notice of the change in use until after the fire), plaintiff had violated the increase in hazard exclusion of the policy. In its answer, NYPIUA asserted the two policy provisions. On plaintiff’s motion to dismiss the two affirmative defenses, NYPIUA successfully proved that the provisions were not ambiguous and as a matter of law were meritorious. The court denied the motion.