DECISION/ ORDER Upon the foregoing papers, plaintiff MIC General Insurance Corporation moves, pursuant to CPLR 3212, for summary judgment in this declaratory judgment action. Defendant Campbell cross-moves, inter alia, for the same summary relief. After due deliberation and review of all the papers, plaintiff’s motion is denied and defendant’s motion for summary judgment is granted.BACKGROUNDThe facts that give rise to this declaratory judgment action are straightforward. Defendant Campbell purchased a homeowners’ insurance policy for her property located at 334 Bronxwood Avenue, Bronx, New York, from plaintiff MIC General Insurance Company. On July 6, 2015, Guiseppina Scalisi allegedly tripped and fell on the sidewalk in front of the premises and commenced suit here in Bronx County, bearing index no. 300076/2016, against Campbell as the property owner.1 Defendant Campbell tendered the summons and complaint to her insurance broker, who forwarded it to MIC General.Now on notice of the claim, MIC General assigned a claims examiner who in turn retained the assistance of an investigative firm. The ensuing investigation firm. The ensuing investigation revealed that Campbell did not reside at the subject property on the date of loss-a fact that Campbell does not dispute. MIC General concluded that based on Campbell’s non-residency, the premises was not an “insured location” within the meaning of her policy. Accordingly, MIC General sent Campbell a disclaimer letter advising that they would provide for her defense until the resolution of the instant declaratory judgment action, which would judicially assess the propriety of her disclaimer. MIC General moves for summary judgment and plaintiff cross-moves, inter alia, for the same relief.LEGAL STANDARDAn exclusion from coverage “must be specific and clear in order to be enforced” (Seaboard Sur. Co. v. Gillette Co., 64 NY2d 304, 311 [1984]). Ambiguity in an exclusionary clause will be construed most strongly against the insurer (Ace Wire & Cable Co. v. Aetna Cas. & Sur. Co., 60 N.Y.2d 390, 398 [1983]). “Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case…and that they are subject to no other reasonable interpretation” (Seaboard Sur. Co., 64 NY2d at 311 [internal citations omitted]).DISCUSSIONAs relevant here, the eighteen-page policy provides, on page twelve, “Section II — Liability Coverages.” Under “Coverage E — Personal Liability,” the policy states:If a claim is made or a suit is brought against you for damages because of bodily injury…we will: (1) pay up to our limit of liability for the damages for which the insured is legally liable…and (2) provide a defense at our expense by counsel of our choice…“Section II — Exclusions” contains an array of incidences that are excluded from coverage, as is common of all insurance policies. As relevant here, it states:1. Coverage E — Personal Liability…do[es] not apply to “bodily injury” or “property damage”:e. Arising out of a premises: (3) rented to others by an “insured”; that is not an ‘insured location.’Undoubtedly, Campbell is the “insured.” Thus, the reader is directed to the first page of the policy, titled “Definitions,” to be certain as to what qualifies as the “insured location.” It provides:4. “Insured location means: [t]he ‘Residence Premises’”Unhelpful, the reader’s eyes are drawn parallel to the right on the same page:8. ‘Residence Premises’ means:a. The one family dwelling, other structures, and grounds; orb. That part of any other building;where you reside and which is shown as the ‘residence premises’ in the Declarations.‘Residence premises’ also means 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.Plaintiff would be entitled to summary judgment if the policy ended there; according to these provisions, plaintiff is not contractually required to defend and/or indemnify the defendant in the event of an accident causing bodily injury arising out of the premises that is rented to others by the defendant, but where the defendant does not reside. However, the policy does not end there.The Policy contains several endorsements. There is one that is conspicuously omitted in plaintiff’s disclaimer letter.The one-page endorsement reads in its entirety:THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.RESIDENCE PREMISESThree or Four Family DwellingFor an additional premium, the definition of ‘residence premises’ is amended to include the three or four family dwelling described in the Declarations of this policy.All other provisions of this policy apply.The Court finds plaintiff has utterly failed to satisfy their burden of establishing that the proffered exclusion applies and is not subject to other reasonable interpretation (Seaboard Sur. Co., 64 NY2d at 311). Including the language of the endorsement and parsing out the irrelevant provisions, the Policy provides that if a suit is brought against defendant for damages because of bodily injury, plaintiff will pay up to their limit of liability for the damages for which the insured is legally liable and provide a defense at their expense by counsel of their choice. However, the coverage does not apply to bodily injury arising out of a premises rented to others by the insured that is not an “insured location.” An “insured location” is defined as the “residence premises” and, in exchange for the additional premium, “residence premises” means, in plain language and without more, the three family dwelling at issue herein — there is no semblance of a residency requirement. Defendant’s interpretation of the exclusion is not merely reasonable, it is the only plausible interpretation. Plaintiff’s disclaimer appears not just inappropriate, but bordering on bad faith. Worse, perhaps, the commencement of this action by counsel flirts upon the cusp of frivolity.CONCLUSIONFor the foregoing reasons, plaintiff’s motion for summary judgment is denied and defendant’s motion is granted. What is more, defendant, “cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations” has hereby prevailed and is thus entitled to attorney fees and expenses incurred as a result of defending herself in this action pursuant to the aptly named the “Mighty Midgets rule” (Mighty Midgets v. Centennial Ins. Co., 47 NY2d 12, 21[1979]; Burlington Ins. Co. v. NYC Tr. Auth., 29 NY3d 313, 330 [2017]).Accordingly, it is herebyORDERED, that plaintiff’s motion for summary judgment is denied; and it is furtherORDERED, that defendant’s motion for summary judgment is granted in its entirety; and it is furtherORDERED, ADJUDGED and DECREED, that plaintiff shall defend and indemnify the insured defendant in accordance with their mutually assented contract for insurance.Dated: 01/10/19
