AND MORE

Matter of Government Employees Ins. Co. v Fudge, 2008 NY Slip Op 51926(U)(Sup Ct, Suffolk County)

The Appellate Division, Second Department has repeatedly held that the term "household" in an insurance policy, without further definition, is ambiguous because that word lacks a fixed meaning ( see, Auerbach v. Otsego Mut. Fire Ins. Co., 36 AD3d 840, 829 NYS2d 195). Where an insurance policy "is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the [insured] against the [insurer]" (Hartol Prods. Corp. v. Prudential Ins. Co., 290 NY 44, 49, 47 NE2d 687). When the meaning of the ambiguous term "household" must be construed by the Court to determine if coverage exists, the intent of the parties is of critical importance (see, Auerbach v. Otsego Mut. Fire Ins. Co., supra ) and the factual circumstances of the particular case involved must be considered (see, Schaut v. Firemen's Ins. Co. of Newark, 130 AD2d 477, 479, 515 NYS2d 60).

The Appellate Division, Second Department, in often quoted language, stated in Schaut v. Firemen's Ins. Co. of Newark (supra ) that:

The interpretation must reflect "the reasonable expectation and purpose of the ordinary business man when making an insurance contract" (Burr v. Commercial Travelers Mut. Acc. Assn. of Amer., 295 NY 294, 301, 67 N.E. 248) and the meaning "which would be given it by the average man" ( Berkowitz v. New York Life Ins. Co., 256 App.Div. 324, 326, 10 NYS2d 106; see, Miller v. Continental Ins. Co., 40 NY2d 675, 389 NYS2d 565, 358 NE2d 258; Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27, 418 NYS2d 76, affd. 49 NY2d 924, 428 NYS2d 675, 406 NE2d 490).

[*3]

With regard to the specific issue of residence, a person may have more than one residence for the purposes of insurance coverage ( see, Matter of Prudential Prop. & Cas. Ins. Co. [Galioto ], 266 AD2d 926, 926, 697 NYS2d 415). "Whether a person is a resident' of an insured's household' requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain' " ( Matter of State Farm Mut. Auto. Ins. Co. v. Nicoletti, 11 AD3d 702, 702, 784 NYS2d 128, quoting New York Cent. Mut. Fire Ins. Co. v. Kowalski, 195 AD2d 940, 941, 600 NYS2d 977; see, Lindner v. Wilkerson, 2 AD3d 500, 501-502, 769 NYS2d 551; Government Empls. Ins. Co. v. Paolicelli, 303 AD2d 633, 633, 756 NYS2d 653).

I was looking around for something else and found this:

Noakes v Rosa, 2008 NY Slip Op 06550 (App. Div., 2d)

The police report should not have been admitted into evidence as a business record exception to the hearsay rule (see Johnson v Lutz, 253 NY 124). The statement in the report that the defendant "rear-ended" the plaintiff was from an unknown source. Since the source of this statement was not identifiable, it was error to admit it (see Battista v Rizzi, 228 AD2d 533). It could not be established whether the source had a duty to make the statement or whether some other hearsay exception [*2]applied (see Murray v Donlan, 77 AD2d 337).

It was also error to admit the statement in the report allegedly made by the defendant that the plaintiff's car backed into her car. This was a self-serving statement that did not fall within a hearsay exception (see Casey v Tierno, 127 AD2d 727).

Since these statements bore on the ultimate issue of fact to be decided by the jury, their admission constituted prejudicial and reversible error, and a new trial is warranted (see Hatton v Gassler, 219 AD2d 697; Gagliano v Vaccaro, 97 AD2d 430).

and another:

GEICO v Harris, 2008 NY Slip Op 51524(U) (App. Term, 2d)

Although the court below found otherwise, plaintiff failed to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The affidavit of plaintiff's subrogation supervisor was of no probative value since she did not have personal knowledge of the underlying facts of the accident, and she failed to annex the transcripts of the examinations under oath conducted of Ms. Legene and Mr. Jean upon which she relied. Furthermore, the unsworn statements in the MV-104 accident report, which plaintiff also submitted in opposition to the motion, constituted hearsay and were not sufficient to raise a triable issue of fact (see Johnson v Phillips, 261 AD2d 269 [1999]; Rue v Stokes, 191 AD2d 245 [1993]).

The bold in the last two cases is mine.