Zises v. New York Central Mutual Fire Insurance

In an action to recover damages for breach of a homeowner’s insurance policy, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated January 10, 2012, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The defendant insurer established, prima facie, that it properly disclaimed coverage under a homeowner’s insurance policy on the ground that the plaintiff did not live at the covered [951] property at the time of the subject 2005 fire. The defendant’s denial of coverage was properly based on the terms of the homeowner’s policy, coupled with the plaintiffs misrepresentation that, in 2005, he “occupied” the subject premises “on a full-time basis” (see Vela v Tower Ins. Co. of N.Y., 83 AD3d 1050 [2011]; Milgrim v Royal & SunAlliance Ins. Co., 75 AD3d 587 [2010]; Marshall v Tower Ins. Co. of N.Y., 44 AD3d 1014 [2007]; Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57 [2000]). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Mastro, J.P., Chambers, Austin and Miller, JJ., concur. [Prior Case History: 34 Mise 3d 1208(A), 2012 NY Slip Op 50020OJ).]