Preview
FILED: ONONDAGA COUNTY CLERK 11/17/2021 02:21 PM INDEX NO. 008588/2018
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/17/2021
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
398
CA 20-00497
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
BRIAN C. PRUSIK, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
LIBERTY MUTUAL INSURANCE GROUP INC., .
DEFENDANT-APPELLANT,
AND GEDDES FEDERAL SAVINGS AND LOAN
ASSOCIATION, DEFENDANT-RESPONDENT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (CORY SCHOONMAKER OF COUNSEL), FOR
DEFENDANT-APPELLANT.
WOODS OVIATT GILMAN LLP, ROCHESTER (ANDREW J. RYAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.
THE MATHEWS LAW FIRM LLP, SYRACUSE (DANIEL F. MATHEWS, III, OF
COUNSEL), FOR DEFENDANT-RESPONDENT.
___ .._______________________________________________________________________ __
Ap]5eal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered February 24, 2020. The order, inter
alia, granted in part plaintiff's motion for summary judgment.
It is hereby ORDERED that the order so appealed from is
unanimously niodified on the law by denying plaintiff's motion in its
entirety and as modified the order is affirmed without costs.
Memorandum: This action arises from an insurance coverage
dispute with respect to a theft provision contained in plaintiff's
homeowner's insurance policy with defendant Liberty Mutual Insurance
Group Inc. (Liberty Mutual). Plaintiff owned.a home that he
refinanced through a lender who later assigned the mortgage to
defendant Geddes Federal Savings and Loan Association (Geddes). The
property was insured by Liberty Mutual. Between 2014 and 2015,
plaintiff defaulted on his mortgage with Geddes and vacated the
residence. He then filed for bankruptcy.
After commencing a mortgage foreclosure proceeding in March 2017 ,
Geddes secured the property and changed the locks. Due to the stay
arising from plaintiff's bankruptcy filing, Geddes discontinued the
foreclosure action in May 2017. A month. later, Geddes instructed a
property maintenance company acting as its agent (maintenance company)
to inspect, secure and maintain the property, which allegedly had been
vandalized several times. The maintenance company cleared out the
house by removing debris and rubbish, and placed the items into
dumpsters. According to an employee of the maintenance company, there
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were no items of value in the house when they cleaned it out.
Plaintiff alleges, however, that many valuable items of property were
removed from his house by the maintenance company, including
computers, furniture, clothes, beds and dishes. He commenced this
action seeking to recover damages in connection with the loss of such
property.
Plaintiff thereafter moved for summary judgment on the complaint,
contending, inter alia, that Liberty Mutual breached the insurance
contract by disclaiming coverage for the loss on the ground that the
property removed and thrown out was not a theft for purposes of the
policy, and thus not a covered peril. Liberty Mutual cross-moved for
summary judgment seeking, inter alia, dismissal of the complaint
against it on the ground that no theft occurred within the meaning of
the policy. Supreme Court, inter alia, granted that part of
plaintiff's motion with respect to Liberty Mutual, and denied Liberty
Mutual's cross motion, determining that a theft occurred as a matter
of.1aw. Liberty Mutual appeals.
The central issue on this appeal is whether the removal of items
from plaintiff's property constitutes a theft under the homeowner's
policy issued by Liberty Mutual. The policy provides coverage for
"[t]heft, including attempted theft and loss of property from a known
stolen."
place when it is likely that the property has been However,
"[t]heft"
is not defined in the policy. Because that term 1s
undefined in the policy, it should be construed "so as to give the
meaning"
term its ordinary and accepted (Sloman v First Fortis Life
Ins. Co., 266 AD2d 370, 371 [2d Dept 1999] ; see Wirth v Liberty Mut.
Ins. Co., 122 AD3d 1364, 1365 -[4th Dept 2014]). Policy provisions
" with
'must be interpreted according to common speech and consistent
insured' "
the reasonable expectation of the average (Dean v Tower
Ins. Co. of N.Y., 19 NY3d 704, 708 [2012]).
Contrary to Liberty Mutual's contention, the court properly
denied its cross motion with respect to the issue whether a theft
occurred under the policy. Initially, Liberty Mutual contends, and we
intelligence"
agree, that "the average policyholder of ordinary
( Abrams v Great Am. Ins . Co. , 269 NY 90, 92 [1935]; see Federal Ins .
Co. v International Bus. Machs. Corp., 18 NY3d 642, 648 [2012]) would
not think that the maintenance company's employees committed theft by
removing items from plaintiff's house and placing them in garbage
dumpsters on the front lawn. Indeed, they did not steal or take
anything. They simply moved items from one part of plaintiff's
property to another. We conclude, however, that a triable issue of
fact. exists whether some unknown person or persons entered the
residence before it was cleaned out by the maintenance company and
stole the items that plaintiff claims were missing. By submitting
only the policy in support of its cross motion, Liberty Mutual failed
to meet its initial burden of eliminating all triable issues of fact
with regard to whether a theft occurred (see generally Winegrad v New
Yor.k Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). As plaintiff
correctly asserts in his brief on appeal, "if Geddes did not remove
the personal property from the [r]esidence, and it was instead removed
by other unknown thieves, Liberty Mutual is still obligated [under the
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loss."
policy] to cover the theft
We nevertheless agree with Liberty Mutual that, in light of the
foregoing, the court erred in granting that part of plaintiff's motion
with respect to Liberty Mutual. As discussed above, the actions of
the maintenance company's employees do not constitute theft under the
policy and, furthermore, plaintiff's submissions on his motion fail to
establish as a matter of law that any other person or persons
committed theft under the policy. Plaintiff thus failed to meet his
initial burden on his motion with respect to Liberty Mutual (see
generally id.), and we therefore modify the order accordingly.
Finally, we reject Liberty Mutual's further contention that the
court should have granted its cross motion insofar as it sought a
conditional order of judgment for subrogation. Liberty Mutual's
subrogation rights do not accrue until payment of a loss (see
Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581-582 [1995] ; cf.
generally McC'abe v Queensboro Farm Prods., 22 NY2d 204, 208 [1968]).
Entered: November 12,. 2021 Ann Dillon Flynn
Clerk of the Court
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NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/17/2021
ébupreme Court
APPELLATE DIVISION
Fourth Judicial Department
Clerk's Office, Rochester, N.Y.
I, Ann Dillon Flynn, Clerk of the Appellate Division of the Supreme Court in
the Fourth Judicial Department, do hereby certify that this is a true copy of the
original order, now on file in this office.
IN WITNESS WHEREOF, I have hereunto set my
hand and aff ixed the seal of said Court at the City
. of Rochester, New York, this November 12, 2021
Clerk
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Preview
FILED: ONONDAGA COUNTY CLERK 11/17/2021 02:21 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/17/2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 398 CA 20-00497 PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ. BRIAN C. PRUSIK, PLAINTIFF-RESPONDENT, V MEMORANDUM AND ORDER LIBERTY MUTUAL INSURANCE GROUP INC., . DEFENDANT-APPELLANT, AND GEDDES FEDERAL SAVINGS AND LOAN ASSOCIATION, DEFENDANT-RESPONDENT. SUGARMAN LAW FIRM, LLP, SYRACUSE (CORY SCHOONMAKER OF COUNSEL), FOR DEFENDANT-APPELLANT. WOODS OVIATT GILMAN LLP, ROCHESTER (ANDREW J. RYAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT. THE MATHEWS LAW FIRM LLP, SYRACUSE (DANIEL F. MATHEWS, III, OF COUNSEL), FOR DEFENDANT-RESPONDENT. ___ .._______________________________________________________________________ __ Ap]5eal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered February 24, 2020. The order, inter alia, granted in part plaintiff's motion for summary judgment. It is hereby ORDERED that the order so appealed from is unanimously niodified on the law by denying plaintiff's motion in its entirety and as modified the order is affirmed without costs. Memorandum: This action arises from an insurance coverage dispute with respect to a theft provision contained in plaintiff's homeowner's insurance policy with defendant Liberty Mutual Insurance Group Inc. (Liberty Mutual). Plaintiff owned.a home that he refinanced through a lender who later assigned the mortgage to defendant Geddes Federal Savings and Loan Association (Geddes). The property was insured by Liberty Mutual. Between 2014 and 2015, plaintiff defaulted on his mortgage with Geddes and vacated the residence. He then filed for bankruptcy. After commencing a mortgage foreclosure proceeding in March 2017 , Geddes secured the property and changed the locks. Due to the stay arising from plaintiff's bankruptcy filing, Geddes discontinued the foreclosure action in May 2017. A month. later, Geddes instructed a property maintenance company acting as its agent (maintenance company) to inspect, secure and maintain the property, which allegedly had been vandalized several times. The maintenance company cleared out the house by removing debris and rubbish, and placed the items into dumpsters. According to an employee of the maintenance company, there 1 of 4 FILED: ONONDAGA COUNTY CLERK 11/17/2021 02:21 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 398 11/17/2021 CA 20-00497 were no items of value in the house when they cleaned it out. Plaintiff alleges, however, that many valuable items of property were removed from his house by the maintenance company, including computers, furniture, clothes, beds and dishes. He commenced this action seeking to recover damages in connection with the loss of such property. Plaintiff thereafter moved for summary judgment on the complaint, contending, inter alia, that Liberty Mutual breached the insurance contract by disclaiming coverage for the loss on the ground that the property removed and thrown out was not a theft for purposes of the policy, and thus not a covered peril. Liberty Mutual cross-moved for summary judgment seeking, inter alia, dismissal of the complaint against it on the ground that no theft occurred within the meaning of the policy. Supreme Court, inter alia, granted that part of plaintiff's motion with respect to Liberty Mutual, and denied Liberty Mutual's cross motion, determining that a theft occurred as a matter of.1aw. Liberty Mutual appeals. The central issue on this appeal is whether the removal of items from plaintiff's property constitutes a theft under the homeowner's policy issued by Liberty Mutual. The policy provides coverage for "[t]heft, including attempted theft and loss of property from a known stolen." place when it is likely that the property has been However, "[t]heft" is not defined in the policy. Because that term 1s undefined in the policy, it should be construed "so as to give the meaning" term its ordinary and accepted (Sloman v First Fortis Life Ins. Co., 266 AD2d 370, 371 [2d Dept 1999] ; see Wirth v Liberty Mut. Ins. Co., 122 AD3d 1364, 1365 -[4th Dept 2014]). Policy provisions " with 'must be interpreted according to common speech and consistent insured' " the reasonable expectation of the average (Dean v Tower Ins. Co. of N.Y., 19 NY3d 704, 708 [2012]). Contrary to Liberty Mutual's contention, the court properly denied its cross motion with respect to the issue whether a theft occurred under the policy. Initially, Liberty Mutual contends, and we intelligence" agree, that "the average policyholder of ordinary ( Abrams v Great Am. Ins . Co. , 269 NY 90, 92 [1935]; see Federal Ins . Co. v International Bus. Machs. Corp., 18 NY3d 642, 648 [2012]) would not think that the maintenance company's employees committed theft by removing items from plaintiff's house and placing them in garbage dumpsters on the front lawn. Indeed, they did not steal or take anything. They simply moved items from one part of plaintiff's property to another. We conclude, however, that a triable issue of fact. exists whether some unknown person or persons entered the residence before it was cleaned out by the maintenance company and stole the items that plaintiff claims were missing. By submitting only the policy in support of its cross motion, Liberty Mutual failed to meet its initial burden of eliminating all triable issues of fact with regard to whether a theft occurred (see generally Winegrad v New Yor.k Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). As plaintiff correctly asserts in his brief on appeal, "if Geddes did not remove the personal property from the [r]esidence, and it was instead removed by other unknown thieves, Liberty Mutual is still obligated [under the 2 of 4 FILED: ONONDAGA COUNTY CLERK 11/17/2021 02:21 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 193 -3- 398 11/17/2021 RECEIVED NYSCEF: CA 20-00497 loss." policy] to cover the theft We nevertheless agree with Liberty Mutual that, in light of the foregoing, the court erred in granting that part of plaintiff's motion with respect to Liberty Mutual. As discussed above, the actions of the maintenance company's employees do not constitute theft under the policy and, furthermore, plaintiff's submissions on his motion fail to establish as a matter of law that any other person or persons committed theft under the policy. Plaintiff thus failed to meet his initial burden on his motion with respect to Liberty Mutual (see generally id.), and we therefore modify the order accordingly. Finally, we reject Liberty Mutual's further contention that the court should have granted its cross motion insofar as it sought a conditional order of judgment for subrogation. Liberty Mutual's subrogation rights do not accrue until payment of a loss (see Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581-582 [1995] ; cf. generally McC'abe v Queensboro Farm Prods., 22 NY2d 204, 208 [1968]). Entered: November 12,. 2021 Ann Dillon Flynn Clerk of the Court 3 of 4 FILED: ONONDAGA COUNTY CLERK 11/17/2021 02:21 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/17/2021 ébupreme Court APPELLATE DIVISION Fourth Judicial Department Clerk's Office, Rochester, N.Y. I, Ann Dillon Flynn, Clerk of the Appellate Division of the Supreme Court in the Fourth Judicial Department, do hereby certify that this is a true copy of the original order, now on file in this office. IN WITNESS WHEREOF, I have hereunto set my hand and aff ixed the seal of said Court at the City . of Rochester, New York, this November 12, 2021 Clerk 4 of 4