A New York trial court recently granted an insurer’s motion for summary judgment pursuant to the “Residence Premises Condition” contained in a homeowner’s insurance policy.  Aschmoneit v. Adirondack Insurance Exchange, 2018 N.Y. LEXIS 3418 (August 7, 2018), The court found that the insured did not reside at the home despite an affidavit asserting that he spent “most weekends” making repairs to the home.

On May 24, 2013, a fire occurred at the insured’s home resulting in $150,000 of alleged damages. Adirondack Insurance Exchange (AIE) denied the insured’s claim for coverage on the ground that he did not reside at the property. AIE’s determination was based, in part, on the fact that gas bills showed no gas usage for winter months.  The insured filed suit.

In response to the insurer’s motion for summary judgment, the insured submitted an affidavit stating that he was at the property on a regular basis, “including most weekends,” he performed construction work there, and he stored personal items, fixtures, and furniture on site. In New York, the standard for determining residency “requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain.”  Dean v. Tower Ins. Co. of New York, 19 NY3d 704, 708,979 N.E.2d 1143, 955, N.Y.S.2d 1143, 955 N.Y.S.2d 817 (2012). Notwithstanding the affidavit, the Court held that that the insured’s alleged intention to reside at the home was insufficient to satisfy the policy’s Residence Premises Condition.

In addition, the court noted that the insured failed to produce evidence to buttress his assertions that he spent most weekends at the home. Specifically, the court noted that the insured “fails to reconcile the discrepancy between his purported weekend use . . .  and the lack of gas service during the winter months of his reported occupancy.” In light of these facts, the court stated that the insured’s affidavit “must be viewed as presenting a feigned factual issue . . . .”

The decision in Aschmoneit demonstrates, once again, that self-serving affidavits that do not comport with real evidence may be regarded with skepticism, and may not offer sufficient grounds to oppose a summary judgment motion.

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