Defendant, Tower Insurance Company of New York (Tower), cross-moves for an order, pursuant to CPLR 3212, (a) granting Tower summary judgment, dismissing the plaintiffs' claims against Tower, (b) severing and restoring Tower's counterclaim against plaintiffs and Daniel Quirke (Quirke), (c) declaring that Tower has no duty to defend or indemnify Kathleen Neary, as executrix of the Estate of Raymond H. Neary, Sr. in an action titled Daniel Quirke v Kathleen Neary, as executrix of the Estate of Raymond H. Neary, Sr., pending in the Supreme Court, Kings County under index number 6315/08, and (d) dismissing the cross claim asserted against Tower by defendants Allstate Insurance Company, Pauline Anastasakos and Edward Sparano, (Allstate defendants).^[FN1]

This is an action by Raymond and Janet Neary (the Nearys) to recover under a homeowner's policy for property damages resulting from a fire at the plaintiffs' home located at 7711 6th Avenue in Brooklyn (the premises) on January 18, 2005. Further, Kathleen Neary, as executrix of the Estate of Raymond H. Neary, Sr., seeks defense and indemnification in the underlying action brought by Quirke, a firefighter who was allegedly injured fighting the fire at the premises. The plaintiffs, who have since died, are represented by the executrix of both estates, their daughter Kathleen Neary.^[FN2] After the fire, but prior to their deaths, the plaintiffs filed a claim under their homeowner's insurance to recover for the damages to the premises. Tower investigated, concluded that the Nearys were not living in the premises at the time of the loss and disclaimed coverage by citing the policy requirement that the insureds must live in the house for coverage to attach. The Nearys commenced the instant action and Tower now moves for summary [*2]judgment to dismiss the plaintiffs' claims. Tower also seeks a declaration that it has no duty to defend or indemnify Kathleen Neary, as executrix of the Estate of Raymond H. Neary, Sr., in Quirke's aforementioned underlying personal injury action.

In support of its motion, Tower introduces the policy at issue. The policy uses the words "you" and "your" to refer to the "named insured," as shown in the Declarations, and the named insured's spouse if a resident in the same household.^[FN3] The policy further states that coverage was provided for the premises, identified as "an owner-occupied two-family dwelling." The dwelling, as is relevant herein, is "[t]he dwelling on the residence premises' shown in the Declarations. . ."

"The policy defines residence premises' as:

a.The one family dwelling, other structures, and grounds; or

b.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."

With regard to the underlying action by Quirke, Tower argues it owes no duty to defend or indemnify the plaintiffs for Quirke's bodily injuries because a policy "exclusion specifically states that liability coverage does not apply to bodily injury:

e.Arising out of a premises:

(1) Owned by an insured';

(2) Rented to an insured';

(3) Rented to others by an insured';

That is not an insured location."

The policy defines "insured location," as is relevant here, to include the "residence premises." To summarize then, Tower contends that since the Nearys did not live in the house, Tower has no duty to indemnify them for the property damages to the premises, nor any duty to defend or indemnify them in the underlying action brought by Quirke.

To substantiate its denial based upon the non-residence of the insureds, Tower offers an unsworn statement written by Raymond Neary, Jr. (Neary Jr.), wherein Neary Jr. recounts that his parents lived in the premises until 1995 when they moved to their daughter's house

in New Jersey. Tower also offers Neary Jr.'s deposition testimony detailing the extent [*3]that he and his parents utilized the home, what was stored therein, as well as how his parents intended to "transition" back to the premises. Tower argues that Neary Jr. "tailored" his testimony once he found out that "residence" was a crucial element required for coverage to attach to the house. Tower supports this allegation by pointing to the fact that Neary Jr. never mentioned the "transition" element in his initial unsworn written statement.

In opposition to the motion, plaintiffs contend that Tower is not entitled to summary judgment because, at the very least, Neary Jr.'s testimony raises a question of fact as to "[w]hat were Raymond Neary Sr.'s intentions" with regard to transitioning back to the premises. Plaintiffs further contend that whether or not Neary Jr. "tailored" his testimony

is a question for a jury to decide because, Raymond Neary Sr., the owner and named insured of the premises, died before being deposed.

Once such a showing is made, the burden shifts and the party opposing the motion must tender evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which would require a trial or tender an acceptable excuse for his or her failure to do so (see Greenberg v Coronet Prop. Co., 167 AD2d 291 [1990]; see Zuckerman 49 NY2d at 557 ). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547 [1995]). Also, the party opposing a motion for summary judgment is entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions of the parties (see Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2003]; see also Akseizer v Kramer, 265 AD2d 356 [1999]; Henderson v City of New York, 178 AD2d 129, 130 [1991]; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1990]; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74 [1987]; Strychalski v Mekus, 54 AD2d 1068, 1069 [1976]). Further, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . on a motion for summary judgment" (Forrest v [*4]Jewish Guild for the Blind, 3 NY3d 295, 315 [2004],

quoting Anderson v Liberty Lobby, Inc., 477 US 242, 255 [1986]; see also Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2002]).

For the reasons set forth below, Tower has failed to satisfy its prima facie burden on its motion for summary judgment. As the moving party, it is Tower who must show, as a matter of law, that the Nearys did not reside in the premises. While Tower's definition of a " residence premises" includes ". . . a two family dwelling where you reside in at least one of the family units. . .," it fails to enumerate a definition for what qualifies as "resides" for the purposes of attaching coverage. Such a clarification is important since, as Tower points out, a person can have more than one residence for purposes such as venue (see CPLR 503[a]; Katz v Siroty, 62 AD2d 1011,1012 [1978]). While Tower's policy offers no definition for "resides," it equally does not preclude an insured from utilizing multiple residences. Having dealt with extensive litigation on this issue, the Second Department has provided guidance stating, in varying forms, that "[r]esidency requires something more than temporary or physical presence, and requires at least some degree of permanence and intention to remain [emphasis added]" (see Matter of State Farm Mut. Auto. Ins. Co. v Bonifacio, 69 AD3d 864 [2010]; Matter of State Farm Mut. Auto. Ins. Co. v Nicoletti, 11 AD3d 702 [2004]; Lindner v Wilkerson, 2 AD3d 500 [2003]; Fennell v New York Central Mut. Fire Ins. Co., 305 AD2d 452, 453 [2003]).

The uncontroverted facts relevant here are that at one point in time, Raymond and Janet Neary resided within the premises and on January 18, 2005, the day of the fire, they were not residing in the premises. It is only Raymond and Janet Neary that can provide admissible evidence of their own intentions. A review of Tower's moving papers fails to provide any sworn written statements, examinations under oath or deposition testimony taken

from the Nearys.^[FN4] In fact, there appears to be no admissible evidence bearing directly on Raymond and Janet Neary's intentions to either remain outside of or return to the subject premises.

Tower's allegations that Neary Jr. "tailored" his testimony to support his parent's intentions are irrelevant on this motion since his testimony regarding what his parents intended to do is inadmissible hearsay. Any other evidence alleged to be instructive, i.e., the change of the policy's billing address to New Jersey, who accepted the premium payments or the scant possessions stored inside the premises, are not determinative in this inquiry on summary judgment as the appellate authority specifically requires an examination of the party's "intent to [*5]remain" in deciding whether "presence" qualifies as "residence." Tower's case law, appearing in its motion, memorandum of law and reply memorandum of law, is

distinguished on the facts as, contrary to the instant matter, the named insured's "intent" regarding residence was clear and documented therein.^[FN5]

Absent such admissible evidence, Tower's allegations that the Nearys did not "reside" in the premises are merely conclusory. Such allegations may not serve as a predicate for granting summary judgment (see Zuckerman at 563; Coley at 796).

Since Tower has failed to meet its initialburden of demonstrating entitlement to judgment as a matter of law, that burden never shifted to plaintiffs to establish the existence of a material issue of fact which would require a trial (see Greenberg, 167 AD2d at 291). Accordingly, the defendant's motion is denied without regard to the sufficiency of the plaintiffs' opposition papers (see Winegrad, 64 NY2d at 853; Hughes v Cai, 31 AD3d 385-386 [2006]; Hanna v Alverado,16 AD3d 624 [2005]).

The court, having considered Tower's remaining contentions, finds them to be without merit. All relief not expressly granted herein is denied.

The foregoing constitutes the decision and order of this court.

J. S. C.