Preview
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PAGE 1 OF 8
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
PRESENT: 0. PETER SHERWOOD PART 61
Justice
TOWER INSURANCE COMPANY OF,
NEW YORK INDEX NO. 109818/07
Plaintiff,
MOTION DATE May 5, 2009
-against-
MOTION SEQ. NO. 001
EVERSON BARRY and JOSEPHINE RICCO,
MOTION CAL NO. . v
Defendants.
The fó:|s- .¡i papers, numbered 1 to _...9_ were read on this motion for a default judgment a d su é
iudstment
PAPERS NUM D
Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1-6
Answering Affidavits - Exhibits 7
Replying Affidavits 8-9
Cross-Motion: D Yes 2 No
O
i- Eu
r On the foregoing papers, the motion of plaint!M Tower Insurance Company of N
z York for a default judgment as against defendant Everson Barry and for summary judgme
oB
I- in its favor against defendant Josephine Ricco that it has to defend
u
or
O declaring noduty
tu -I defendant in an action is decided in accordance with th
indemnify Barry underlying
accompanying decision, order and judgment.
u
Cis
edgment has not been entered by the County
judgment saached.
4 the crder andjor
Dated:
0. PETER SHERWOOD, J.S.C.
O
Check one: )f FINALDISPOSITION U NON-FINAL DISPOSITION
O
Check if appropriate: G DO NOT POST
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 61
__________________________________________X
TOWER INSURANCE COMPANY OF NEW YORK DECISION, ORDER
AND JUDGMENT
Plaintiff,
-against- Index No. 109818/2007
EVERSON BARRY and JOSEPHINE RICCO,
Defendants.
--------------------- -- -- -------------X
O. PETER SHERWOOD, J.:
In a declà ratory judgment action, plaintiff Tower Insurance Company of New York
("Tower") moves for an order granting it a default judgment pursuant to CPLR § 3215 (a) as against
defendant Everson Barry ("Bany") and summary judgment pursuant to CPLR § 3212 as against
defendant Josephine Ricco ("Ricco") declaring that it has no duty to defeñd or indemnify defendant
Barry in a personal injury action captioned Josephine Ricco v Everson Barry, currently pending in
Supreme Court, Queens County.(Index No. 17225/06) ("the underlying action"), in which Ricco, the
plaintiff therein, alleges she sustained injuries due to a defective condition on steps on the preiliises
116th
located at 150-27 Road, Jamaica, New York, which is owned by defendant Barry ("the
premises"). Tower asserts that it is not responsible for defending or indemnifying Barry in the
underlying action because the policy issued to Barry excludes coverage for liability where the injury
occurs at premises in which the insured does not reside and the accident forming the basis of the
underlying action did not occur at a premises where Barry resided. Tower asserts further that the
defendants'
failure to provide it with timely notice of claim relieved it of the duty to defend or
indemnify Barry.
Background
In or about May 2004, Barry purchased the premises from his sister Annette Williams.
Tower issued Dwelling Fire Policy to Barry under policy number DFP2450759, effective April 20,
2005 through April 20, 2006 ("the policy") (Aff. Edward Blomquist, Tower's vice-president of
116th
personal lines underwriting, Ex. "C"). The address listed on the policy is 150-27 Road,
Jamaica, New York 11434, a one-family dwelling. The policy states that "[t]he residence premises
below."
covered by this policy are located at the above-insured address unless otherwise stated
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021
The policy provides coverage for liability due to bodily injury caused by "an occurrence".
However, this coverage is subject to certain exclusions, one of which applies to any claim for bodily
'business' 'insured'
injury "arising out of pursuits of an or the rental or holding for rental of any
premises by an 'insured'". The policy further provided in paragraph 1. b. that "[t]his exclusion does
not apply to:
non-'business'
(1) Activities which are usual to pursuits; or
(2) The rental or holding for rental of an 'insured location':
(a) On an occasional basis if used only as a residence;
(b) In part for use only as a residence unless a single
family unit is intended for use by the occupying
family to lodge more than two roomers or boarders;
(c) In part, as an office, school, studio, or private garage.
The Tower policy also contains in paragraph 1. d. an exclusion for bodily injury "arising out
premises:"
of a
'insured;'
(1) owned by an
'insured;'
(2) rented to an
'insured;' location;'
(3) rented to others by an that is not an 'insured
location"
"Insured is defined in the policy as the "residence premises". The policy defmes
"residence premises", in relevant part, as:
a. the one family dwelling, other structures, and grounds; or
b. that part of any other building; where you [the named insured]
premises'
reside and which is shown as the 'residence in the
Declarations.
In the underlying complaint, Ricco, who was a tenant at the premises, alleges that on or about
March 28, 2006, while traversing steps on an interior staircase within the premises, she was caused
to trip and fall as the result of the defective, dangerous and unsafe condition of the steps and
susteñêd bodily injury as a result of Barry's negligence in maintaining the steps (Aff. Francis A.
Garufi, Esq., Ex. "A", ¶¶ 8, 9).
On December20, 2006, Tower received notice ofthe underlying claim(Aff.Lowell Aptman,
Tower's vice-president of liability claims, ¶6). Immediately upon receiving notice, Tower initiated
2
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an investigation into Ricco's claim (id. ¶ 7). Tower's investigator obtained written statements from
both Barry and his sister, Annette Williams. In their statements, Barry and Williams confirm that
Barry purchased the premises in May 2004 and that he never resided at the premises (Aff. James
"A"
Trainor, Exs. and "B"). A lease entered into between Barry and Ricco for a one-year term
226*
commencing February 1, 2005 indicates Barry's residence as 1067 E. Street, Bronx. New York
10466 (Garufi Aff., Ex. "C").
By letter dated January 25, 2007, Tower disclaimed coverage under the policy based on the
exclusion for liability for bodily injury where the accident occurs in premises in which the insured
does not reside and, thus, does not qualify as an insured location. In addition, Tower disclaimed
coverage under the exclusion for bodily injury arising from Barry's "business pursuits", to wit, the
rental of the premises to Ricco. Tower also noted that coverage was denied because in his insurance
application Barry misrepresented material facts regarding his occupancy to the extent that the
premises were being used as a one-family rental and Barry did not reside there. Lastly, Tower
contended that Barry breached a term of the policy by failing to provide timely notice of the claim.
Ricco's attorney was copied on the letter. Subsequently, by letter dated May 8, 2007, a second
disclaimer letter was sent to Barry with a copy to Ricco's attorney (Aptman Aff., Ex. "B"). Tower
appointed counsel to defend Barry in the underlying action and obtained an extension of time in
which to interpose an answer in that action (Garufi Aff., Ex. "B"),
Tower commenced this action on July 17, 2007. The complaint seeks a judgment declaring
that Tower has no duty to defend or indemnify Barry in the underlying action based, inter alia, on
the exclusions for bodily injuries that occur in a premises in which the insured does not reside or
arising out of the insured's business pursuits and the fact that Barry failed to provide timely notice
of the claim (Garufi Aff., Ex. "D"). The sworn affidavit of service shows that Barry was personally
served with the summons and complaint on July 31, 2007 ( Garufi Aff., Ex. "E"). Thereafter, an
additional copy of the summons and complaint were mailed to Barry under cover of letter dated
September 10, 2007 (Garufi Aff. ¶ 12, Ex. "E"). Barry has failed to answer or appear in this action
and in the underlying action (Garufi Aff. ¶ 12; Aptman Aff., Ex. "A").
3
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Discussion
It is well settled that a party may obtain a default judgment against a defendant who fails to
appear or answer (CPLR § 3215 [a]). On an application for a default judgment, the moving party
must present proof of service of the summons and complaint, proof of the claim by a person with
personal knowledge of the facts and proof of the default (see, CPLR § 3215 [fj ; Woodsen v Mendon
Leasing Corp., 100 NY2d 62, 70 [2003]). The Court is obligated to assess the merits of the
complaint since a plaintiff who fails to make a prima facie showing of a right to judgment is not
entitled to a default judgment even though the motion is imeppased(see, Martucci v Bowaskie Ice
House, 31 AD3d 1021 [3d Dept 2006], lv denied 7 NY3d 916 [2006], rearg denied 8 NY3d 894
[2007], cert denied 128 S. Ct. 277 [2007], rehearing denied 128 S. Ct. 1339 [2008]).
In the first instance, plaintiff properly effectuated service upon defendâñt Barry pursuant to
CPLR § 308 (1) by delivering the summons and complaint to him personally as indicated in the
sworn affidavit of service which serves as prima facie evidence of proper service (see, Matter ofde
[1"
Sanchezv JP Morgan Chase Bank; 57 AD3d 452 Dept 2008]). Therefore, jurisdiction has been
obtained over defendant Barry.
An insurer's duty to defend turns solely upon the allegations of the complaint which must
be accepted by the court as true (see, Continental Cas. Co. v Employers Ins. Co. of Wausau, 60
[1"
AD3d 128, 142 Dept 2008]). "The inquiry is whether the allegations fall within the risk of loss
"
undertaken by the insured (BP Air Conditioning Corp. v One Beacon Ins. Group, 8 NY3d 708, 714
[2007]). "[I]f the allegations interposed in the underlying complaint allow for no interpretation
which brings them within the policy provisions, then no duty to defend exists [citations omitted].
'An insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no
pmsible factual or legal basis on which it might eventually be obligated to indemnify its insured
provision' 'shot-gun'
under any policy [citations omitted] and an insured may not 'by use of a
allegation, create a duty to defend beyond that which was anticipated by the parties when they
contract'"
entered into the policy (Atlantic Mut. Ins. Co. v Terk Technologies Corp., 309 AD2d 22,
[1"
29 Dept 2003]).
Here, the underlying complaint alleges that Ricco's accident occurred on steps on the
premises. The policy provisions at issue are not ambiguous. They clearly exclude claims "arising
4
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021
'insured' 'insured'
out of a premises . . . owned by an . . . rented to others an . . . that is not an
by
premises"
'insured location"'. The policy defines the insured location as, inter alia, the "residence
which is further defined as "the one family dwelling, other structures, and grounds"; or "that part of
any other building; where you reside and which is shown as the residence premises in the
Declarations". Such provisions have been held to operate to require insured residency as described
as a condition of coverage (see, Marshall v Tower Ins. Co. of N.Y., 44 AD3d 1014 [2d Dept. 2007];
Tower Ins. Co. of N.Y v Monroy, 2008 WL 5507595 [Sup. Ct. N.Y. Co. 2008]; Tower Ins. Co. of
N Y. v Prosper, 2008 WL 923963 [Sup. Ct. N.Y. Co. 2008]).
Here, the Declaration identifies the insured as Everson Barry and the residence premises
116'"
covered by the policy as 150-27 Road, Jamaica, New York. Tower has submitted proof that
Barry did not reside at the residence premises, but rather maintained his primary residence at 1067
226th
East Street, Bronx, New York. As previously noted, Barry has defaulted in this action.
Although defendant Ricco has submitted opposition to Tower's motion, she has failed to proffer
evidence sufficient to raise a triable issue of fact on this issue. Accordingly, since Barry does not
location"
reside at the premises, it is not an "insured and there is no coverage for the underlying
claim,
The court further concludes that Tower met its burden of proving that underlying claim
alleged falls within the business pursuits exclusion of the policy (see, Salimbene v Merchants Mut.
[4*
Ins. Co., 217 AD2d 991, 992 Dept 1995], appeal withdrawn 88 NY2d 979 [1996]). The policy
"business"
defines to include trade, profession or occupation. For an activity to constitute a
"business"
within the meaning of the exclusion, there generally must be regular and continued
activity and a profit motive (see generally, 70 NYJur 2d Insurance § 1563). However, an exception
to the exclusion applies and the insured may still be covered if the activity is one "usual to non-
'business' pursuits" location'
or "the rental or holding for rental of an 'insured [is] on an occasional
residence."
basis if used only as a
Defendant Ricco contends that the exception applies and that the underlying claim is covered
by the policy. Ricco argues that there is no evidence that the rental of the premises was more than
deal"
an "isolated instance, a one shot (Aff. of Harlan S. Budin, Esq.). Ricco's contentions lack
merit. The record adequately demonstrates that Barry never resided at the premises, leased the
5
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021
premises to third parties on a continuing basis from the time of purchase and received income for
such rental. Thus, it cannot be said that such rental was incident to a non-business pursuit, was an
occasional activity or that there was no profit motive (see,Salimbene v Merchants Mut. Ins. Co.,
supra; Vellemen v Continental Ins. Co., 162 Misc2d 95 [Sup. Ct. Tompkins Co. 1994]).
Lastly, Tower is relieved from its obligation to defend or indemnify Barry in the underlying
defendants'
action for respective failure to give Tower timely notice ofthe underlying accident. The
requirement that an insured give its insurer timely notice of an accident is a condition precedent and
failure to do so vitiates the insurance contract (see, C.C.R. Realty of Dutchess, Inc. v N.Y. Cen.
Mutual Fire Ins. Co., 1 AD3d 304, 305 [2d Dept 2003]). However, if the insured is able to establish
a reasonable belief of non-liability, the untimely notice is excused (id.). Here, since Barry has
defaulted, no evideñcc has been presented as to the reason Barry did not give timely notice of the
accident and Ricco correctly avers that she lacks standing to advance arguments on Barry's behalf.
It is undisputed that the accident occurred on March 28, 2006. The statements obtained by Tower's
investigator James Trainor from Barry and his sister Annette Williams indicate that Barry learned
of Ricco's accident as early as late March 2006 after getting a call from his sister advising him that
Ricco was going to sue to recover from the injuries she allegedly sustained in a fall on the premises.
Barry also received a call in July 2006, which Ms. Williams indicated was from Ricco's attomey,
inquiring as to Barry's ownership of the premises and the identity of his insurer (Trainor Aff. Exs.
"A"
and "B"). Tower was first notified of the accident by way of letter from Ricco's attorneys
which Tower received from Barry's insurance broker on December 20, 2006, nearly nine months
after the accident and after Barry learned of such accident and Ricco's intent
Preview
FILED: NEW YORK COUNTY CLERK 02/11/2021 04:32 PM INDEX NO. 151433/2020 PAGE 1 OF 8 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: 0. PETER SHERWOOD PART 61 Justice TOWER INSURANCE COMPANY OF, NEW YORK INDEX NO. 109818/07 Plaintiff, MOTION DATE May 5, 2009 -against- MOTION SEQ. NO. 001 EVERSON BARRY and JOSEPHINE RICCO, MOTION CAL NO. . v Defendants. The fó:|s- .¡i papers, numbered 1 to _...9_ were read on this motion for a default judgment a d su é iudstment PAPERS NUM D Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1-6 Answering Affidavits - Exhibits 7 Replying Affidavits 8-9 Cross-Motion: D Yes 2 No O i- Eu r On the foregoing papers, the motion of plaint!M Tower Insurance Company of N z York for a default judgment as against defendant Everson Barry and for summary judgme oB I- in its favor against defendant Josephine Ricco that it has to defend u or O declaring noduty tu -I defendant in an action is decided in accordance with th indemnify Barry underlying accompanying decision, order and judgment. u Cis edgment has not been entered by the County judgment saached. 4 the crder andjor Dated: 0. PETER SHERWOOD, J.S.C. O Check one: )f FINALDISPOSITION U NON-FINAL DISPOSITION O Check if appropriate: G DO NOT POST FILED: NEW YORK COUNTY CLERK 02/11/2021 04:32 PM INDEX NO. 151433/2020 PAGE 2 OF 8 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 61 __________________________________________X TOWER INSURANCE COMPANY OF NEW YORK DECISION, ORDER AND JUDGMENT Plaintiff, -against- Index No. 109818/2007 EVERSON BARRY and JOSEPHINE RICCO, Defendants. --------------------- -- -- -------------X O. PETER SHERWOOD, J.: In a declà ratory judgment action, plaintiff Tower Insurance Company of New York ("Tower") moves for an order granting it a default judgment pursuant to CPLR § 3215 (a) as against defendant Everson Barry ("Bany") and summary judgment pursuant to CPLR § 3212 as against defendant Josephine Ricco ("Ricco") declaring that it has no duty to defeñd or indemnify defendant Barry in a personal injury action captioned Josephine Ricco v Everson Barry, currently pending in Supreme Court, Queens County.(Index No. 17225/06) ("the underlying action"), in which Ricco, the plaintiff therein, alleges she sustained injuries due to a defective condition on steps on the preiliises 116th located at 150-27 Road, Jamaica, New York, which is owned by defendant Barry ("the premises"). Tower asserts that it is not responsible for defending or indemnifying Barry in the underlying action because the policy issued to Barry excludes coverage for liability where the injury occurs at premises in which the insured does not reside and the accident forming the basis of the underlying action did not occur at a premises where Barry resided. Tower asserts further that the defendants' failure to provide it with timely notice of claim relieved it of the duty to defend or indemnify Barry. Background In or about May 2004, Barry purchased the premises from his sister Annette Williams. Tower issued Dwelling Fire Policy to Barry under policy number DFP2450759, effective April 20, 2005 through April 20, 2006 ("the policy") (Aff. Edward Blomquist, Tower's vice-president of 116th personal lines underwriting, Ex. "C"). The address listed on the policy is 150-27 Road, Jamaica, New York 11434, a one-family dwelling. The policy states that "[t]he residence premises below." covered by this policy are located at the above-insured address unless otherwise stated FILED: NEW YORK COUNTY CLERK 02/11/2021 04:32 PM INDEX NO. 151433/2020 PAGE 3 OF 8 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021 The policy provides coverage for liability due to bodily injury caused by "an occurrence". However, this coverage is subject to certain exclusions, one of which applies to any claim for bodily 'business' 'insured' injury "arising out of pursuits of an or the rental or holding for rental of any premises by an 'insured'". The policy further provided in paragraph 1. b. that "[t]his exclusion does not apply to: non-'business' (1) Activities which are usual to pursuits; or (2) The rental or holding for rental of an 'insured location': (a) On an occasional basis if used only as a residence; (b) In part for use only as a residence unless a single family unit is intended for use by the occupying family to lodge more than two roomers or boarders; (c) In part, as an office, school, studio, or private garage. The Tower policy also contains in paragraph 1. d. an exclusion for bodily injury "arising out premises:" of a 'insured;' (1) owned by an 'insured;' (2) rented to an 'insured;' location;' (3) rented to others by an that is not an 'insured location" "Insured is defined in the policy as the "residence premises". The policy defmes "residence premises", in relevant part, as: a. the one family dwelling, other structures, and grounds; or b. that part of any other building; where you [the named insured] premises' reside and which is shown as the 'residence in the Declarations. In the underlying complaint, Ricco, who was a tenant at the premises, alleges that on or about March 28, 2006, while traversing steps on an interior staircase within the premises, she was caused to trip and fall as the result of the defective, dangerous and unsafe condition of the steps and susteñêd bodily injury as a result of Barry's negligence in maintaining the steps (Aff. Francis A. Garufi, Esq., Ex. "A", ¶¶ 8, 9). On December20, 2006, Tower received notice ofthe underlying claim(Aff.Lowell Aptman, Tower's vice-president of liability claims, ¶6). Immediately upon receiving notice, Tower initiated 2 FILED: NEW YORK COUNTY CLERK 02/11/2021 04:32 PM INDEX NO. 151433/2020 PAGE4 OF 8 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021 an investigation into Ricco's claim (id. ¶ 7). Tower's investigator obtained written statements from both Barry and his sister, Annette Williams. In their statements, Barry and Williams confirm that Barry purchased the premises in May 2004 and that he never resided at the premises (Aff. James "A" Trainor, Exs. and "B"). A lease entered into between Barry and Ricco for a one-year term 226* commencing February 1, 2005 indicates Barry's residence as 1067 E. Street, Bronx. New York 10466 (Garufi Aff., Ex. "C"). By letter dated January 25, 2007, Tower disclaimed coverage under the policy based on the exclusion for liability for bodily injury where the accident occurs in premises in which the insured does not reside and, thus, does not qualify as an insured location. In addition, Tower disclaimed coverage under the exclusion for bodily injury arising from Barry's "business pursuits", to wit, the rental of the premises to Ricco. Tower also noted that coverage was denied because in his insurance application Barry misrepresented material facts regarding his occupancy to the extent that the premises were being used as a one-family rental and Barry did not reside there. Lastly, Tower contended that Barry breached a term of the policy by failing to provide timely notice of the claim. Ricco's attorney was copied on the letter. Subsequently, by letter dated May 8, 2007, a second disclaimer letter was sent to Barry with a copy to Ricco's attorney (Aptman Aff., Ex. "B"). Tower appointed counsel to defend Barry in the underlying action and obtained an extension of time in which to interpose an answer in that action (Garufi Aff., Ex. "B"), Tower commenced this action on July 17, 2007. The complaint seeks a judgment declaring that Tower has no duty to defend or indemnify Barry in the underlying action based, inter alia, on the exclusions for bodily injuries that occur in a premises in which the insured does not reside or arising out of the insured's business pursuits and the fact that Barry failed to provide timely notice of the claim (Garufi Aff., Ex. "D"). The sworn affidavit of service shows that Barry was personally served with the summons and complaint on July 31, 2007 ( Garufi Aff., Ex. "E"). Thereafter, an additional copy of the summons and complaint were mailed to Barry under cover of letter dated September 10, 2007 (Garufi Aff. ¶ 12, Ex. "E"). Barry has failed to answer or appear in this action and in the underlying action (Garufi Aff. ¶ 12; Aptman Aff., Ex. "A"). 3 FILED: NEW YORK COUNTY CLERK 02/11/2021 04:32 PM INDEX NO. 151433/2020 PAGE 5 OF 8 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021 Discussion It is well settled that a party may obtain a default judgment against a defendant who fails to appear or answer (CPLR § 3215 [a]). On an application for a default judgment, the moving party must present proof of service of the summons and complaint, proof of the claim by a person with personal knowledge of the facts and proof of the default (see, CPLR § 3215 [fj ; Woodsen v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]). The Court is obligated to assess the merits of the complaint since a plaintiff who fails to make a prima facie showing of a right to judgment is not entitled to a default judgment even though the motion is imeppased(see, Martucci v Bowaskie Ice House, 31 AD3d 1021 [3d Dept 2006], lv denied 7 NY3d 916 [2006], rearg denied 8 NY3d 894 [2007], cert denied 128 S. Ct. 277 [2007], rehearing denied 128 S. Ct. 1339 [2008]). In the first instance, plaintiff properly effectuated service upon defendâñt Barry pursuant to CPLR § 308 (1) by delivering the summons and complaint to him personally as indicated in the sworn affidavit of service which serves as prima facie evidence of proper service (see, Matter ofde [1" Sanchezv JP Morgan Chase Bank; 57 AD3d 452 Dept 2008]). Therefore, jurisdiction has been obtained over defendant Barry. An insurer's duty to defend turns solely upon the allegations of the complaint which must be accepted by the court as true (see, Continental Cas. Co. v Employers Ins. Co. of Wausau, 60 [1" AD3d 128, 142 Dept 2008]). "The inquiry is whether the allegations fall within the risk of loss " undertaken by the insured (BP Air Conditioning Corp. v One Beacon Ins. Group, 8 NY3d 708, 714 [2007]). "[I]f the allegations interposed in the underlying complaint allow for no interpretation which brings them within the policy provisions, then no duty to defend exists [citations omitted]. 'An insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no pmsible factual or legal basis on which it might eventually be obligated to indemnify its insured provision' 'shot-gun' under any policy [citations omitted] and an insured may not 'by use of a allegation, create a duty to defend beyond that which was anticipated by the parties when they contract'" entered into the policy (Atlantic Mut. Ins. Co. v Terk Technologies Corp., 309 AD2d 22, [1" 29 Dept 2003]). Here, the underlying complaint alleges that Ricco's accident occurred on steps on the premises. The policy provisions at issue are not ambiguous. They clearly exclude claims "arising 4 FILED: NEW YORK COUNTY CLERK 02/11/2021 04:32 PM INDEX NO. 151433/2020 PAGE 6 0F 8 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021 'insured' 'insured' out of a premises . . . owned by an . . . rented to others an . . . that is not an by premises" 'insured location"'. The policy defines the insured location as, inter alia, the "residence which is further defined as "the one family dwelling, other structures, and grounds"; or "that part of any other building; where you reside and which is shown as the residence premises in the Declarations". Such provisions have been held to operate to require insured residency as described as a condition of coverage (see, Marshall v Tower Ins. Co. of N.Y., 44 AD3d 1014 [2d Dept. 2007]; Tower Ins. Co. of N.Y v Monroy, 2008 WL 5507595 [Sup. Ct. N.Y. Co. 2008]; Tower Ins. Co. of N Y. v Prosper, 2008 WL 923963 [Sup. Ct. N.Y. Co. 2008]). Here, the Declaration identifies the insured as Everson Barry and the residence premises 116'" covered by the policy as 150-27 Road, Jamaica, New York. Tower has submitted proof that Barry did not reside at the residence premises, but rather maintained his primary residence at 1067 226th East Street, Bronx, New York. As previously noted, Barry has defaulted in this action. Although defendant Ricco has submitted opposition to Tower's motion, she has failed to proffer evidence sufficient to raise a triable issue of fact on this issue. Accordingly, since Barry does not location" reside at the premises, it is not an "insured and there is no coverage for the underlying claim, The court further concludes that Tower met its burden of proving that underlying claim alleged falls within the business pursuits exclusion of the policy (see, Salimbene v Merchants Mut. [4* Ins. Co., 217 AD2d 991, 992 Dept 1995], appeal withdrawn 88 NY2d 979 [1996]). The policy "business" defines to include trade, profession or occupation. For an activity to constitute a "business" within the meaning of the exclusion, there generally must be regular and continued activity and a profit motive (see generally, 70 NYJur 2d Insurance § 1563). However, an exception to the exclusion applies and the insured may still be covered if the activity is one "usual to non- 'business' pursuits" location' or "the rental or holding for rental of an 'insured [is] on an occasional residence." basis if used only as a Defendant Ricco contends that the exception applies and that the underlying claim is covered by the policy. Ricco argues that there is no evidence that the rental of the premises was more than deal" an "isolated instance, a one shot (Aff. of Harlan S. Budin, Esq.). Ricco's contentions lack merit. The record adequately demonstrates that Barry never resided at the premises, leased the 5 FILED: NEW YORK COUNTY CLERK 02/11/2021 04:32 PM INDEX NO. 151433/2020 PAGE 7 OF 8 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/11/2021 premises to third parties on a continuing basis from the time of purchase and received income for such rental. Thus, it cannot be said that such rental was incident to a non-business pursuit, was an occasional activity or that there was no profit motive (see,Salimbene v Merchants Mut. Ins. Co., supra; Vellemen v Continental Ins. Co., 162 Misc2d 95 [Sup. Ct. Tompkins Co. 1994]). Lastly, Tower is relieved from its obligation to defend or indemnify Barry in the underlying defendants' action for respective failure to give Tower timely notice ofthe underlying accident. The requirement that an insured give its insurer timely notice of an accident is a condition precedent and failure to do so vitiates the insurance contract (see, C.C.R. Realty of Dutchess, Inc. v N.Y. Cen. Mutual Fire Ins. Co., 1 AD3d 304, 305 [2d Dept 2003]). However, if the insured is able to establish a reasonable belief of non-liability, the untimely notice is excused (id.). Here, since Barry has defaulted, no evideñcc has been presented as to the reason Barry did not give timely notice of the accident and Ricco correctly avers that she lacks standing to advance arguments on Barry's behalf. It is undisputed that the accident occurred on March 28, 2006. The statements obtained by Tower's investigator James Trainor from Barry and his sister Annette Williams indicate that Barry learned of Ricco's accident as early as late March 2006 after getting a call from his sister advising him that Ricco was going to sue to recover from the injuries she allegedly sustained in a fall on the premises. Barry also received a call in July 2006, which Ms. Williams indicated was from Ricco's attomey, inquiring as to Barry's ownership of the premises and the identity of his insurer (Trainor Aff. Exs. "A" and "B"). Tower was first notified of the accident by way of letter from Ricco's attorneys which Tower received from Barry's insurance broker on December 20, 2006, nearly nine months after the accident and after Barry learned of such accident and Ricco's intent