Koczwara v. Nationwide General Insurance Company
OPINION AND ORDER re: denying 51 MOTION for Summary Judgment. filed by Stanislaw Koczwara, granting 44 MOTION for Summary Judgment . filed by Nationwide General Insurance Company.For the reasons set forth above, defendant's motion for summary judgment (Dkt. No. 44) is GRANTED and plaintiff's cross-motion (Dkt. No. 51) is DENIED. The Clerk of Court is respectfully directed to enter judgment in favor of defendant and close the case. SO ORDERED. (Signed by Magistrate Judge Barbara C. Moses on 5/10/2022) (tg) Transmission to Orders and Judgments Clerk for processing.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
NATIONWIDE GENERAL INSURANCE
Plaintiff Stanislaw Koczwara, the owner of a multi-unit residential building in Brooklyn,
brought this action against his homeowner's insurance carrier, defendant Nationwide General
Insurance Company (Nationwide), after it declined to cover the losses he incurred as a result of a
November 8, 2018 fire in the building. Now before the Court are the parties' cross-motions for
summary judgment. (Dkt. Nos. 44, 51.) The material facts, which cannot be disputed, are simple:
In his insurance application, plaintiff stated that his property had three units, with three families
living in them. The policy that Nationwide issued to him covered "one, two, three or four-family"
dwellings. In fact, plaintiff's building had at least six units, rented to unrelated tenants. After the
fire, Nationwide discovered the additional units and denied coverage. As explained below,
Nationwide was entitled to do so and consequently will be granted summary judgment.
The following facts, which unless otherwise noted are undisputed, are taken from
(i) defendant's Statement of Material Facts, filed pursuant to Local Civil Rule 56.1 (Def. 56.1 St.)
(Dkt. No. 44-1); (ii) the underlying evidentiary materials, including the declaration of Roy A. Mura
(Mura Decl.) (Dkt. No. 44-2), the affidavit of John Loftus (Loftus Aff.) (Dkt. No. 44-3), and their
exhibits; (iii) plaintiff's Opposition to Defendant's Motion for Summary Judgment (Pl. 56.1 St.)
(Dkt. No. 49); (iv) the underlying evidentiary materials, which are attached to the declaration of
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Stanislaw Koczwara (Dkt. No. 54) and include the Affirmation of Stanislaw Koczwara (Pl. Aff.)
(Dkt. No. 54 at ECF page 46); (v) defendant's Response to Plaintiff's Purported Statement of
Material Facts (Dkt. No. 58); and (vi) the reply declaration of Roy A. Mura (Dkt. No. 55).
Plaintiff owns a three-story property at 37 Jewel Street, Brooklyn, New York (the Subject
Property). Def. 56.1 St. ¶ 2. On April 12, 2013, he signed an application for a Nationwide
homeowner's insurance policy to cover the Subject Property. Id. ¶ 3. In the application, plaintiff
expressly represented that there were three "families" and three "units" in the building. Id. ¶ 4;
Loftus Aff. ¶ 8 & Ex. A. Later that month, defendant issued homeowner's policy No. 66 31 HO
674387 (the Policy) to plaintiff. Def. 56.1 St. ¶ 7; Loftus Aff. ¶ 9. Nationwide's underwriting
policies at that time prohibited the issuance of a homeowner's policy for a property that had more
than four units. Def. 56.1 St. ¶ 6; Loftus Aff. ¶ 24 & Ex. D. Plaintiff's Policy, which was renewed
on February 26, 2018 for the period April 15, 2018-April 15, 2019, see Loftus Aff. ¶ 10 & Ex. B
(copy of Policy as renewed), expressly covered only "the residence premises," defined in the
Policy as the "one, two, three or four-family dwelling" at "the address shown on the Declarations."
Policy Form HE-31-F, at A2, B1 (all bolded Policy text as in the original). 1
On November 8, 2018, there was a fire at the Subject Property. Def. 56.1 St. ¶ 27, and
plaintiff made a claim under the Policy. Mura Decl. ¶ 11. Thereafter, Nationwide learned that each
floor of the building had two apartment units. Def. 56.1 St. ¶ 21; Pl. 56.1 St. ¶ 21 (conceding the
fact but arguing that it is "irrelevant"). 2 Plaintiff lived in a unit on the first floor and rented the
Under Coverage A, the Policy covered losses to "[t]he dwelling on the residence premises[.]"
Policy Form HE-31-F, at B. Under Coverage C, it covered "personal property owned or used by
an insured at the residence premises." Id.
After an initial unsworn interview on November 16, 2018 (the contents of which the Court does
not rely on for summary judgment purposes), Nationwide conducted more formal "examination
under oath," at which plaintiff was represented by counsel, on March 8, 2019. Mura Aff. ¶ 12 &
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others, each of which had a separate entrance and was rented pursuant to a separate lease. Def.
56.1 St. ¶¶ 19-26, 34; Pl. 56.1 St. ¶¶ 19-26, 34; Pl. EUO at 34:20-22; Micheo Dep. at 11:12-22,
18:6-16; Kido Dep. at 4:24-5:24, 11:4-23, 19:2-14. None of the six people living in the Subject
Premises at the time of the fire – in six different apartments – were related to one other. Pl. EUO
at 19:1-19. During his examination under oath, plaintiff repeatedly confirmed that the
configuration of the building at the time of the fire was unchanged from when he purchased it in
1995. Pl. EUO at 11:5-6 ("It was like that. That's the way I bought it."); id. at 61:5 ("I bought it
this way."). Thus, it is undisputed that the building contained at least six units when plaintiff
submitted his insurance application to Nationwide.
On the day of the fire, the New York City Department of Buildings (DOB) cited plaintiff
for having "3 OR MORE ADDITIONAL DWELLING UNITS THAN LEGALLY
AUTHORIZED," after which he was served with a Peremptory Vacate Order to the same effect.
Def. 56.1 St. ¶¶ 35-38; Pl. 56.1 St. ¶¶ 35-38 (conceding these facts but characterizing them as
"irrelevant"); see also Mura Decl. Ex. H (certified copies of DOB records) at ECF pages 130-131,
133, 149, 152, 160. 3
On February 20, 2019, Nationwide declined to renew the Policy, explaining that "the
dwelling is a 6-family home which is ineligible." Def. 56.1 St. ¶ 42; Loftus Aff. ¶ 29 & Ex. E. On
Ex. B (Pl. EUO). During the discovery period in this action, Nationwide conducted depositions of
two of plaintiff's former tenants: Candelario Micheo, who rented apartment "2 rear" until the fire,
see Mura ¶ 19(b); id. Ex. D (Micheo Dep.); id. Ex. E (Micheo lease), and Haruku Kido, who rented
apartment "1F." See Mura Decl. ¶ 19(c); id. Ex. F (Kido Dep.); id. Ex. G (Kido lease).
According to the Peremptory Vacate Order, partitions erected within the Subject Property, along
with related plumbing and electrical work, had "converted a 3 family dwelling into 7 Class 'A'
apartments with no secondary means of egress for 3F, 2F, 1F, and the cellar apartment. These
hazardous conditions have therefore rendered the ENTIRE BUILDING unsafe to occupy." Mura
Decl. Ex. H at ECF page 149. There is no evidence in the record of this action as to whether the
cellar apartment was occupied at the time of the fire.
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January 15, 2020, Nationwide denied coverage for the losses caused by the 2018 fire. Def. 56.1
St. ¶ 43; Loftus Aff. ¶ 17 & Ex. C. This action followed.
Plaintiff, initially counseled, brought this action in New York State Supreme Court on
February 14, 2020, alleging that Nationwide breached the Policy by denying coverage for the fire
losses and seeking at least $409,516 in damages. See Compl. (Dkt. No. 6-1) at ECF page 4.
Defendant removed the case to this Court on March 27, 2020, on diversity grounds. (Dkt. No. 6.)
In its answer, Nationwide asserted, among other things, that coverage was precluded by the express
language of the Policy because at all relevant times the Subject Property "was more than a fourfamily dwelling" and in fact contained "six or seven distinct apartments," occupied by "at least six
different and unrelated persons and households." Ans. (Dkt. No. 9) ¶¶ 11-12. It also invoked the
"concealment or fraud" provision of the Policy, which specifies that the Policy does not provide
coverage for an insured who has "intentionally misrepresented a material fact or circumstance
which would have caused us not to issue or renew this policy." Id. ¶¶ 14-18; Policy Form HE-31F, at L1 ¶ 2. Following the close of discovery, plaintiff's counsel withdrew, leaving him pro se.
(Dkt. Nos. 33-38.) On June 18, 2021, defendant filed its motion for summary judgment. On July
15, 2021, plaintiff filed his opposition papers and cross-motion.
A court may grant a motion for summary judgment "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Holt v.
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KMI–Continental, Inc., 95 F.3d 123, 128–29 (2d Cir. 1996). The moving party bears the initial
burden of informing the court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine dispute as to any material fact. Fed. R. Civ. P.
56(c); Celotex, 477 U.S. at 322; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002).
In evaluating the record, the court must construe the evidence in the light most favorable to the
non-moving party and must draw all reasonable inferences in the non-moving party's favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re "Agent Orange" Prod. Liab.
Litig., 517 F.3d 76, 87 (2d Cir. 2008). "In applying this standard, the court should not weigh
evidence or assess the credibility of witnesses. These determinations are within the sole province
of the jury." Frost v. New York City Police Dep't, 980 F.3d 231, 242 (2d Cir. 2020) (quoting Hayes
v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996)).
If the moving party meets its initial burden, the burden shifts to the non-moving party to
establish a genuine dispute of material fact. Celotex, 477 U.S. at 322; Beard v. Banks, 548 U.S.
521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The non-moving party
"must do more than simply show that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To defeat
summary judgment, he must present specific, admissible evidence in support of his contention that
there is a genuine dispute as to the material facts. Celotex, 477 U.S. at 324; see also Jeffreys v. City
of New York, 426 F.3d 549, 553-54 (2d Cir. 2005); D'Amico v. City of New York, 132 F.3d 145,
149 (2d Cir. 1998) (nonmoving party must offer "some hard evidence showing that [his] version
of the events is not wholly fanciful"). Furthermore, the evidence must be sufficient to permit a
reasonable jury to return a verdict in the non-moving party's favor. Anderson, 477 U.S. at 242,
248; Nick's Garage, Inc. v. Progressive Casualty Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) ("A
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genuine issue of material fact exists if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.") (internal quotation marks omitted). Thus, "conclusory
statements, conjecture, or speculation by the party resisting the motion will not defeat summary
judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
Local Civil Rule 56.1
In the Southern District of New York, the moving party must submit a "short and concise
statement, in numbered paragraphs," of the material facts that it contends to be undisputed, with
citations to the underlying evidence. Local Civil Rule 56.1(a). The non-moving party must then
respond in kind, with numbered paragraphs that correspond "to each numbered paragraph in the
statement of the moving party." Local Civ. R. 56.1(b). To the extent not "specifically controverted"
by the non-moving party, the statement of material facts submitted by the moving party may be
"deemed to be admitted for purposes of the motion." Local Civ. R. 56.1(c); see also Giannullo v.
City of New York, 322 F.3d 139, 140 (2d Cir. 2003) ("If the opposing party then fails to controvert
a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.").
Pro Se Parties
Where, as here, a pro se party is opposing a summary judgment motion, the court
should read his papers "liberally," and "interpret them to raise the strongest arguments that
they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Mikinberg v.
Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993); Haines v. Kerner, 404 U.S. 519, 520-21
(1972). The court is not obligated, however, to accept a pro se litigant's factual assertions
where they contradict his own previous statements or are otherwise "beyond belief." Shabazz
v. Pico, 994 F. Supp. 460, 470 (S.D.N.Y. 1998) (Sotomayor, D.J.) (quoting Dawes v.
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Coughlin, 964 F. Supp. 652, 657 (N.D.N.Y.1997)), vacated on other grounds 205 F.3d 1324
(2d Cir. 2000).
Breach of Contract Under New York Law
Under New York law (which both parties assume to be applicable), contract interpretation
"is a matter of law for the court to decide." Int'l Multifoods Corp. v. Commercial Union Ins. Co.,
309 F.3d 76, 83 (2d Cir. 2002). When considering an insurance policy, courts apply the same rules
of construction applicable to contracts generally. Rosano v. Freedom Boat Corp., 2015 WL
4162754, at *3 (E.D.N.Y. July 8, 2015). Thus, an insurance policy "is interpreted to give effect to
the intent of the parties as expressed in the clear language of the contract." Parks Real Estate
Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42 (2d Cir. 2006) (citations and
internal quotation marks omitted).
Where contract interpretation is at issue, summary judgment may be granted if the words
of the contract "convey a definite and precise meaning absent any ambiguity." Seiden Assocs., Inc.,
v. ANC Holdings, 959 F.2d 425, 428 (2d Cir.1992); see also Compagnie Financiere de CIC et de
L'Union Europeenne v. Merrill Lynch, Pierce, Fenner & Smith Inc., 232 F.3d 153, 157 (2d Cir.
2000) ("Summary judgment is generally proper in a contract dispute only if the language of the
contract is wholly unambiguous."). Contract language is ambiguous if it is "capable of more than
one meaning when viewed objectively by a reasonably intelligent person who has examined the
context of the entire integrated agreement." Compagnie Financiere de CIC et de L’Union
Europeenne, 232 F.3d at 158 (quoting Sayers v. Rochester Tel. Corp. Suppl. Mgmt. Pension, 7
F.3d 1091, 1094 (2d Cir. 1993)). Although extrinsic evidence may be admissible to interpret an
ambiguous contract provision, such evidence may not be introduced for the purpose of rendering
ambiguous a contract which is clear on its face. Consarc Corp. v. Marine Midland Bank, N.A., 996
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F.2d 568, 573 (2d Cir. 1993) (if a contract is unambiguous, a court is "required to give effect to
the contract as written and may not consider extrinsic evidence to alter or interpret its meaning").
Defendant Is Entitled to Summary Judgment on Plaintiff's Breach of Contract
The Policy Does Not Cover Losses at the Subject Property
Coverage under the Policy is limited to the "residence premises," defined as the "one, two,
three or four-family dwelling . . . located at the mailing address shown on the Declarations[.]"
Policy Form HE-31-F, at A2, B1. It is undisputed, however, that the Subject Property had "two
apartment units" on each of its three floors, Def. 56.1 St. ¶ 21; Pl. 56.1 St. ¶ 21, for a total of at
least six separate units, with separate entrances and leases, in which at least six unrelated persons
resided. Def. 56.1 St. ¶¶ 19-26; Pl. 56.1 St. ¶¶ 19-26; Pl. EUO at 18:22-19:19. The DOB records
submitted by defendant corroborate these facts (and suggest that there was a seventh unit in the
cellar). Mura Decl. Ex. H at ECF pages 130-131, 133, 149, 152, 160. Thus, the Subject Property
was in fact a six-family dwelling (at least). And since six-family dwellings are not covered by the
Policy, Nationwide was entitled to deny coverage for plaintiff's loss. See, e.g., Dauria v.
CastlePoint Ins. Co., 104 A.D. 3d 406, 407, 960 N.Y.S.2d 105, 106 (1st Dep't 2013) (where
homeowner's policy covered a "two-family dwelling" at the specified address, carrier was entitled
to rescind policy, after a fire, upon discovery that the home contained "three separate units, each
with its own kitchen, bathroom, and separate entrance"); Elshazly v. Castlepoint Ins. Co., 49
Misc.3d 1216(A), 2015 WL 7737920, at *3 (N.Y. Sup. Ct., N.Y. Co., Nov. 16, 2015) (where policy
covered a "one family" or "two family" dwelling at the specified address, carrier properly denied
coverage, after a fire, upon learning that "the structural configuration of the Premises was arranged
to consist of three dwelling units," two of them occupied by unrelated tenants, "each with its own
bathroom, kitchen, living area/bedroom and separate entrance").
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The Policy is Not Ambiguous
Plaintiff contends that the language of the Policy is ambiguous, preventing the Court from
granting summary judgment. See Pl. Mem. of Law in Opp'n to Def. Mot. for Summ. J. (Pl. Opp'n
Mem.) (Dkt. No. 50) at 6-8. He argues that because the Policy uses the term "one, two, three, or
four family dwelling" rather than "one, two, three, or four unit building," it is irrelevant that there
were at least six separate residential units in the Subject Premises. Id.; see also Pl. 56.1 St. ¶ 14
("[t]he concept 'unit' does not seem to appear anywhere in the policy contract, h[e]nce should be
dismissed as invalid."); id. ¶ 15 ("The concept of 'structural configuration' is not reflected in the
Neither logic nor precedent supports plaintiff's hair-splitting argument. To the contrary:
the New York courts have repeatedly explained that terms like "four family dwelling" are
unambiguous. In Dauria, for example, the Appellate Division expressly rejected the argument that
plaintiff raises here:
Nor is there any ambiguity in the policy term "residence premises" which, as
relevant here, is defined as "a two family dwelling where you reside in at least one
of the family units and which is shown as the 'residence premises' in the
Declarations." . . . The term "family," as used in "family units," "one family
dwelling" and "two family dwelling," necessarily relates to an entire self-contained
dwelling unit[.] Since the premises here consists of three dwelling units, it is a
three-family dwelling and does not fit within the policy definition of a covered
104 A.D.3d at 407, 960 N.Y.S.2d at 106 (internal citation omitted); see also Est. of Gen Yee Chu
v. Otsego Mut. Fire Ins. Co., 148 A.D.3d 677, 678, 49 N.Y.S.3d 468, 470 (2d Dep't 2017) (because
the home in question "was structurally configured as a three-family dwelling," the "the statement
on [plaintiff's] insurance application indicating that it was a two-family dwelling was a
misrepresentation"); Castlepoint Ins. Co. v. Jaipersaud, 127 A.D.3d 401, 4 N.Y.S.3d 498 (1st
Dep't 2015) (carrier was entitled to summary judgment where an "inspection of the premises
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regarding its structural configuration" showed that the home "was a three-family dwelling, rather
than a two-family dwelling as covered by the subject policy and as represented in the application
for insurance"); Lema v. Tower Ins. Co. of New York, 119 A.D.3d 657, 658, 990 N.Y.S.2d 231 (2d
Dep't 2014) ("Although the plaintiff represented in the application for insurance that the subject
premises was a two-family dwelling, the defendant submitted evidence . . . showing that the subject
premises contained three separate dwelling units, each with its own kitchen, bathroom, and
separate entrance. This evidence established, prima facie, that the subject premises was a threefamily dwelling based on its structural configuration."); Hermitage Ins. Co. v. LaFleur, 100 A.D.
426, 953 N.Y.S.2d 209, 209-10 (1st Dep't 2012) (affirming grant of summary judgment to carrier
where "the building [the homeowners] described as a two-family dwelling in their application for
commercial general liability insurance contains three apartments"); Almonte v. Castlepoint Ins.
Co., 45 Misc. 3d 1218(A), 2014 WL 6434448, at *4 (N.Y. Sup. Ct., N.Y. Co., Oct. 8, 2014)
(granting summary judgment to carrier where the policy defined "residence premises" as a one or
two family home, but the evidence established that "plaintiffs' premises contained a third and
separate dwelling unit in the basement, which renders it a three-family dwelling not covered under
the policy"), aff'd, 140 A.D.3d 658, 33 N.Y.S.3d 718 (1st Dep't 2016); Elshazly, 2015 WL
7737920, at *4 ("The structural configuration of the premises is determinative[.]").
The key question, in these cases, is the actual configuration and use of the premises at the
time of the application or the loss, not the original floorplan, the deed, or the number of "legal"
units authorized by the DOB. See, e.g., LaFleur, 100 A.D.3d at 427, 953 N.Y.S.2d at 210 ("while
the third apartment may have been constructed illegally, the building is nevertheless a three-family
dwelling"); Tower Ins. Co. of New York v. Atuana, 127 A.D.3d 454, 4 N.Y.S.3d 523 (1st Dep't
2015) ("The deed and City document indicating that the building was a two-family dwelling were
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irrelevant" where the evidence "sufficiently demonstrated that the building was a three-family
dwelling"), as corrected (May 19, 2015); Jaipersaud, 127 A.D.3d at 401, 4 N.Y.S.3d at 498 ("the
number of families is determined by actual use, even if in violation of the certificate of
Here, as in Dauria, 104 A.D.2d at 407, 960 N.Y.S.2d at 106, there is no ambiguity in the
Policy term "residence premises," which excludes buildings with more than four residential units.
Nor is there any dispute as to the facts concerning the Subject Property, which was divided into at
least six self-contained living units with separate apartment numbers, entrances, and leases. Since
the Subject Property was not covered by the Policy, Nationwide did not breach its contract when
it disclaimed coverage and is now entitled to summary judgment.
Plaintiff's "Negligence" Allegation Is Unavailing
Plaintiff further argues that defendant should have inspected the Subject Property to
determine the number of units for itself, and that because it issued the Policy without doing so, it
should not be permitted to disclaim coverage on this ground. See Pl. Opp'n Mem. at 7-8; Pl. Mem.
of Law in Supp. of Cross-Mot. for Summ. J. (Dkt. No. 52) at 4-5 (setting out elements of
negligence cause of action); Pl. 56.1 St. ¶ 9 (asserting that the Policy was issued "because of
defendant's neglect [of] his affairs including an inspection [and] the duty of care to verify the
Subject Property, for which [it] had plenty to opportunities to make one"). This line of attack fails
Nor does it matter whether the owners at the time of the loss reconfigured the property themselves
or purchased it after the modifications had already been made. See, e.g., Canale v. Castlepoint Ins.
Co., 64 Misc. 3d 1208(A), 2019 WL 2707668, at *3-5 (N.Y. Sup. Ct., Bronx Co., May 20, 2019)
(granting summary judgment to carrier where property was "configured as an SRO and occupied
by no less than ten separate family units," notwithstanding plaintiffs' testimony that "the layout of
the premises remained 'basically' unchanged from the time it was purchased up until the time of
the fire and there were no material changes made to the layout").
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because neither the Policy nor the law of New York required Nationwide to inspect plaintiff's
building before issuing a homeowner's policy. See City of Amsterdam v. Lam, 270 A.D.2d 603,
605, 703 N.Y.S.2d 606, 609 (3d Dep't 2000) ("[A]n insurer does not have a duty to inspect the
premises before issuing a policy[.]") (collecting cases). 5 Moreover, to the extent that plaintiff now
seeks to proceed on a negligence cause of action that he never pled, it is too late. See Enzo Biochem,
Inc. v. Amersham PLC, 981 F. Supp. 2d 217, 223 (S.D.N.Y. 2013) ("[i]t is well settled that a party
may not amend its pleadings in its briefing papers").
The Court Need Not Reach the Misrepresentation Issue
Because plaintiff's fire loss is not covered by the Policy, the Court does not reach
defendant's alternative argument that the Policy is void because plaintiff "'intentionally
misrepresented' the 'material fact or circumstance' of how many families lived within and how
many units comprised the Subject Premises at the time he filled out his application[.]" Def. Mem.
of Law in Supp. of Mot. for Summ. J. (Dkt. No. 44-5) at 8-12. See Jaipersaud, 127 A.D.3d at 40102 (where there was no coverage for plaintiff's losses, because "his home was a three-family
dwelling, rather than a two-family dwelling as covered by the subject policy," it was "unnecessary
to determine whether the misrepresentation on the insurance application vitiated the policy"). 6
To the contrary: New York law imposes a duty on insureds (regardless of their language skills)
to "review the entire application and to correct any incorrect or incomplete answers." Curanovic
v. New York Cent. Mut. Fire Ins. Co., 307 A.D.2d 435, 437, 762 N.Y.S.2d 148, 151 (3d Dep't
2003) (quoting N. Atl. Life Ins. Co. of Am. v. Katz, 163 A.D.2d 283, 285, 557 N.Y.S.2d 150, 152
(2d Dep't 1990)); see also Courtney v. Nationwide Mut. Fire Ins. Co., 179 F. Supp. 2d 8, 11-13
(N.D.N.Y. 2001) ("an individual applying for insurance coverage has a duty to review the
application and correct any incomplete or incorrect answers," even where the form was filled out
by an agent of the insurer), aff'd, 23 F. App'x 91 (2d Cir. 2002) (summary order).
The clause on which Nationwide relies reads as follows: "This policy does not provide coverage
for an insured who has intentionally misrepresented any material fact or circumstance which would
have caused us not to issue or renew the policy." Policy, Form HE-31-F, at L1. Here, is clear that
the application form misrepresented the number of "families" and the number of "units" in the
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Similarly, the Court does not consider whether Nationwide could have rescinded the Policy
pursuant to New York Ins. Law § 3105(b) based on the misrepresentations alone. See Smith v.
Guardian Life Ins. Co., 116 A.D.3d 1031, 1032, 984 N.Y.S.2d 597, 598 (2d Dep't 2014) ("[E]ven
innocent misrepresentations, if material, are sufficient to allow an insurer to defeat recovery under
the insurance contract.") (quoting Meagher v. Exec. Life Ins. Co. of New York, 200 A.D.2d 720,
720, 607 N.Y.S.2d 361, 362 (2d Dep't 1994), and collecting cases); Est. of Gen Yee Chu, 148
A.D.3d at 678, 49 N.Y.S.3d at 468 ("an insurer may rescind a policy if the insured made a material
misrepresentation of fact even if the misrepresentation was innocently or unintentionally made"). 7
For the reasons set forth above, defendant's motion for summary judgment (Dkt. No. 44)
is GRANTED and plaintiff's cross-motion (Dkt. No. 51) is DENIED. The Clerk of Court is
respectfully directed to enter judgment in favor of defendant and close the case.
Dated: New York, New York
May 10, 2022
United States Magistrate Judge
Subject Property, see Loftus Decl. Ex. A, at ECF page 1, and equally clear that these facts were
material. See Def. 56.1 St. ¶ 6; Loftus Aff. ¶ 28 (had plaintiff's application "truthfully disclosed
that the Subject Property comprised six or seven separate units and was more than a four-family
dwelling, Nationwide would not have issued the Subject Policy"); id. Ex. D (underwriting
guidelines accepting "[u]p to 4 family dwelling"). Plaintiff contends, however, that his
misrepresentations could not have been "intentional" because the application form was "all filled
by the agent." Pl. Aff. at 1. Plaintiff adds that since he does not speak or read English, and had no
interpreter or translator present to explain the "ready filled" document to him, he "only signed what
[he was] given to sign," in hopes that the agent "is honest and knows what he is doing." Id.
Nationwide does not argue this point in its summary judgment papers.
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