Mareno v. Security Mutual Insurance

In an action to recover damages incurred from the illegal cancellation of a homeowner’s insurance policy, plaintiff, as the executor of the named insured, appeals from an order of the Supreme Court, Westchester County (Coppola, J.), entered November 29, 1982, which denied his motion for summary judgment. 11 Order affirmed, without costs or disbursements. 11 Apparently, there is a provision in the subject homeowner’s insurance policy which relieves the insurance carrier from liability if the insured premises becomes vacant or unoccupied for a specified period of time. There is no dispute between the parties that the insured premises was both vacant or unoccupied for a specified period of time. Whether this vacant or unoccupied provision is applicable where the named insured and sole occupant of the insured premises dies and her legal representative is substituted as the named insured in accordance with another policy provision is a question of law (see De Vanzo v Newark Ins. Co., 44 AD2d 39; McLeod & Henry Co. v Employers’ Fire Ins. Co., 46 AD2d 242; 8 Couch, Insurance 2d, Vacancy and Unoccupancy, § 37:864; 29 NY Jur, Insurance, § 593). Nevertheless, plaintiff’s motion for summary judgment was correctly denied because a construction of the written contract of insurance is precluded by the parties’ failure to proffer as exhibits all the provisions of the policy at issue. Titone, J. P., Gibbons, O’Connor and Rubin, JJ., concur.