MIC General Insurance Corporation v. Qadri

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------X

MIC GENERAL INSURANCE CORPORATION,

Plaintiff,

MEMORANDUM AND

-against- ORDER

21-CV-640-SJB

SYED S. QADRI and SATINDER KAUR,

Defendants.

----------------------------------------------------------------X

BULSARA, United States Magistrate Judge:

This lawsuit is an insurance coverage dispute relating to an ongoing litigation

pending in New York Supreme Court, Queens County (the “Underlying Action”).1 In

that Underlying Action, Satinder Kaur sued Syed S. Qadri and Quality Medical

Providers, PC (“Quality Medical”) for personal injuries she allegedly sustained on the

exterior steps of 104-37 Lefferts Boulevard, South Richmond Hill, New York (the

“Premises”).2 MIC General Insurance Corporation (“MIC”) agreed to provide

homeowner’s insurance for the location, but contends that Qadri and Quality Medical

were using the Premises not as a residence, but as a business. Citing to a number of

policy exclusions and definitions, MIC contends that it is not, as a matter of law,

required to provide defense coverage to Qadri. Qadri contends the opposite, arguing

that the policy, as a matter of law, requires defense coverage. Because the Court

1 Compl., Dkt. No. 1 ¶¶ 4, 9; Pl.’s Rule 56.1 Statement of Material Facts, attached

as Ex. 16 to Pl.’s Mot. for Summ. J. filed July 28, 2022, Dkt. No. 23 and Pl.’s Resp. to

Def.’s Rule 56.1 Counterstatement of Material Facts, Dkt. No. 25 (together, “Pl. 56.1

Stmt.”) ¶¶ 1–2, 6; Def.’s Rule 56.1 Counterstatement of Material Facts (“Def. 56.1

Stmt.”), attached as Ex. 1 to Def.’s Cross-Mot. for Summ. J. filed July 28, 2022, Dkt. No.

24 ¶¶ 1–2, 6.

2 Compl. ¶¶ 10, 12.

concludes that there is an issue of material fact as to whether an exception to the

exclusion of business coverage applies, the parties’ respective cross-motions for

summary judgment are denied.3

STANDARD FOR SUMMARY JUDGMENT

A “court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

(1986). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.’” Nick’s Garage, Inc. v.

Progressive Cas. Ins. Co., 875 F.3d 107, 113–14 (2d Cir. 2017) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In determining whether summary

judgment is appropriate, [the Court] must resolve all ambiguities and draw all

reasonable inferences against the moving party.” Tolbert v. Smith, 790 F.3d 427, 434

(2d Cir. 2015) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)).

The movant bears the burden of “demonstrat[ing] the absence of a genuine issue

of material fact.” Celotex, 477 U.S. at 323. “This is true even though the court [is]

presented with cross-motions for summary judgment; each movant has the burden of

presenting evidence to support its motion that would allow the district court, if

appropriate, to direct a verdict in its favor.” Barhold v. Rodriguez, 863 F.2d 233, 236

3 Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”), Dkt. No. 23; Def.’s Cross-Mot. for Summ.

J. (“Def.’s Cross-Mot.”), Dkt. No. 24. As noted on the docket, (Order dated Nov. 29,

2021), Kaur is only a nominal defendant in the case, against whom MIC has asserted no

claim. The reference to Defendant’s motion is to the cross-motion for summary

judgment filed solely by Qadri.

(2d Cir. 1988). “[T]he fact that both parties have moved for summary judgment does

not mean that the Court must grant summary judgment for one of the parties, and it

does not change the burden on the moving party to show the absence of a genuine issue

of fact. Each party’s motion must be evaluated on its own merits and all reasonable

inferences must be drawn against the party whose motion is under consideration.”

Wagner v. Cnty. of Cattaraugus, 866 F. Supp. 709, 714 (W.D.N.Y. 1994) (citing

Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988) and

Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 314 (2d Cir. 1981)).

“A party asserting that a fact cannot be or is genuinely disputed must support the

assertion” in one of two ways. Fed. R. Civ. P. 56(c)(1). It may cite to portions of the

record “including depositions, documents, electronically stored information, affidavits

or declarations, . . . admissions, interrogatory answers, or other materials.” Id. R.

56(c)(1)(A). Alternatively, it may show that “the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Id. R. 56(c)(1)(B); cf. Farid v. Smith, 850 F.2d

917, 924 (2d Cir. 1988).

In moving for summary judgment or answering such a motion, litigants are

required by the Local Rules to provide a statement (a Rule 56.1 statement) setting forth

purported undisputed facts or, if controverting any fact, responding to each assertion.

See Loc. Civ. R. 56.1(a)–(b). In both instances, the party must support its position by

citing to admissible evidence from the record. Id. R. 56.1(d); see also Fed. R. Civ. P.

56(c) (requiring reliance on admissible evidence in the record in supporting or

controverting a purported material fact). “The purpose of Local Rule 56.1 is to

streamline the consideration of summary judgment motions by freeing district courts

from the need to hunt through voluminous records without guidance from the parties.”

Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).

Where claims in opposing Rule 56.1 statements are “genuinely disputed,” the

Court will consider the evidentiary sources of the claims. Halberg v. United Behav.

Health, 408 F. Supp. 3d 118, 146 (E.D.N.Y. 2019) (adopting report and

recommendation). In evaluating the sources of claims made in dueling Rule 56.1

statements, the Court cannot—as is true for the summary judgment motion as a whole—

weigh evidence or assess the credibility of witnesses. See United States v. Rem, 38 F.3d

634, 644 (2d Cir. 1994). “Legal arguments are impermissible in any Rule 56.1 Statement

and are to be disregarded.” Taveras v. HRV Mgmt., Inc., No. 17-CV-5211, 2020 WL

1501777, at *2 (E.D.N.Y. Mar. 24, 2020); Lawrence v. Cont’l Cas. Co., No. 12-CV-412,

2013 WL 4458755, at *1 n.1 (E.D.N.Y. Aug. 16, 2013) (“Both parties have submitted

Local Rule 56.1 statements and responses to each other’s statements that mix factual

assertions with legal argument and therefore fail to meet the requirements of Local Rule

56.1. The facts . . . are taken from those assertions contained in the Local Rule 56.1

statements that comply with Local Rule 56.1[.]” (citations omitted)). The Court must

also disregard conclusory denials that lack citations to admissible evidence. Rodriguez

v. Schneider, No. 95-CV-4083, 1999 WL 459813, at *1 n.3 (S.D.N.Y. June 29, 1999)

(“Rule 56.1 statements are not argument. They should contain factual assertions, with

citation to the record. They should not contain conclusions[.]” (emphasis in original)),

aff’d, 56 F. App’x 27 (2d Cir. 2003). Further, where the opposing party fails to

specifically controvert a numbered paragraph in the Rule 56.1 statement, the statement

by the moving party “will be deemed to be admitted.” Loc. Civ. R. 56.1(c). The Court

also does not give any consideration to hearsay, speculation, or inadmissible evidence in

evaluating declarations or affidavits. Pacenza v. IBM Corp., 363 F. App’x 128, 130 (2d

Cir. 2010) (“[A] court is obliged not to consider inadmissible evidence at the summary

judgment stage[.]”); Crawford v. Dep’t of Investigation, No. 05-CV-5368, 2007 WL

2850512, at *2 (S.D.N.Y. Oct. 1, 2007) (“[A] non-moving party ‘must set forth specific

facts showing that there is a genuine issue for trial;’ he or she ‘may not rely on mere

conclusory allegations nor speculation, but instead must offer some hard evidence

showing that its version of the events is not wholly fanciful.’” (quoting Woodman v.

WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005))), aff’d, 324 F. App’x 139 (2d Cir. 2009).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following facts—drawn from the pleadings, the parties’ respective Rule 56.1

statements, and supporting affidavits and exhibits attached thereto—are, unless

otherwise noted, undisputed.

On October 13, 2020, Satinder Kaur began the Underlying Action against Qadri

and Quality Medical for injuries she sustained on November 7, 2019 on the front

exterior steps of the Premises, alleging negligence, willful, wanton, and gross negligence,

carelessness, and want of proper care. (Pl. 56.1 Stmt. ¶¶ 1, 3; Def. 56.1 Stmt. ¶¶ 1, 3).

She alleged Qadri and Quality Medical owned, operated, and managed the Premises,

and were responsible for the dangerous and defective condition of the exterior front

steps of the Premises. (Id. ¶¶ 2, 4; Pl. 56.1 Stmt. ¶¶ 2, 4). At the time of the accident, the

Premises served, at least in part, as an office for Quality Medical, Qadri’s family medical

practice. (Id. ¶ 28; Def. 56.1 Stmt. ¶ 28).

MIC issued a homeowner’s insurance policy to Qadri (the “Policy”) for the

Premises for the period of November 8, 2018 through November 9, 2019. (Id. ¶ 5;

Policy, attached as Ex. 13 to Pl.’s Mot.; Pl. 56.1 Stmt. ¶ 5). The Policy provides coverage

to Qadri for, among other things, personal injuries suffered on the Premises by third

parties. (Policy at 59). It provides that “[i]f a claim is made or a suit is brought against

an ‘insured’ for damages because of ‘bodily injury’ . . . caused by an ‘occurrence’ to which

this coverage applies,” MIC is required to indemnify and provide a defense to Qadri in

any litigation. (Id.). The Policy includes exclusions to this coverage, two of which are

relevant here.

First, the Policy does not provide coverage for injuries suffered on the Premises

arising out of “business pursuits of an insured” (the “Business Exclusion”) or “the rental

or holding for rental of any premises by an insured” (the “Rental Exclusion”). (Id. at 70

(quotations omitted); Pl. 56.1 Stmt. ¶ 10; Def. 56.1 Stmt. ¶ 10). This exclusion contains

an exception (the “Office Rental Exception”), and does not apply to:

(1) Activities which are usual to non-“business” 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; or

(c) In part, as an office, school, studio, or private garage[.]

(Id. (emphasis added); Policy at 70; Pl. 56.1 Stmt. ¶ 10). Second, the Policy excludes

coverage for any injuries occurring at a non-“insured location” (the “Insured Location

Exclusion”). (Id. ¶¶ 7, 10; Policy at 59; Def. 56.1 Stmt. ¶¶ 7, 10). The Policy provides

that “insured location” includes the “residence premises,” namely the “the one family

dwelling, other structures, and grounds; or that part of any other building; where

[Qadri] reside[s] and which is shown as the ‘residence premises’ in the Declarations.”

(Id. ¶ 9; Policy at 58; Pl. 56.1 Stmt. ¶ 9).

Qadri, a licensed physician, is the president and a shareholder of Quality

Medical. (Id. ¶¶ 27, 29, 65; Def. 56.1 Stmt. ¶¶ 27, 29, 65). He purchased the Premises

in 2008 in his own name, converting one-third of the three-story house into a medical

office. (Id. ¶¶ 43–45; Pl. 56.1 Stmt. ¶¶ 43–45). Beginning in 2008 and until the time

of Kaur’s accident, the ground floor of the Premises served as a medical office for

Quality Medical. (Id. ¶¶ 16, 28, 45, 57; Def. 56.1 Stmt. ¶¶ 16, 28, 45, 57). A photograph

of the front exterior of the Premises depicts a blue awning labeled with the written

words: “Quality Medical Provider, P.C.: Syed S. Qadri, M.D., D.O., FAAFP.” (Id. ¶ 41;

Google Maps Image, attached as Ex. 11 to Pl.’s Mot.; Pl. 56.1 Stmt. ¶ 41). On January 1,

2017, Qadri entered into a written five-year commercial lease of the Premises with

Quality Medical (the “Lease”), signing the contract on its behalf. (Id. ¶¶ 30, 33;

Commercial Lease Agreement, attached as Ex. 8 to Pl.’s Mot., at 1; Def. 56.1 Stmt. ¶¶

30, 33). Qadri, as owner and lessor, took responsibility for maintenance of the

Premises. (Id. ¶¶ 31–32; Pl. 56.1 Stmt. ¶¶ 31–32; Dep. Test. of Syed S. Qadri on Aug.

13, 2021 (“Qadri Dep.”), attached as Ex. 5 to Pl.’s Mot., at 24:22–25, 26:7–11). The

Lease provided that “[t]he Premises shall be used and occupied only as a retail shop

and for no other purpose.” (Commercial Lease Agreement § 3.1). At the time of Kaur’s

accident, the basement was only accessible through Quality Medical, and the exterior

front staircase to the Premises—where Kaur was injured—was the only means of

ingress and egress to the building. (Pl. 56.1 Stmt. ¶¶ 39–40, 52–53; Def. 56.1 Stmt. ¶¶

39–40, 52–53). In a recorded statement, Qadri stated Kaur’s “accident happened at

[his] warehouse,” which has a medical office within it because he is “a doctor, so [he is]

using that space for [his] medical office.” (Id. ¶ 15; Recorded Statement of Syed S.

Qadri (“Qadri Recorded Statement”), attached as Ex. 14 to Pl.’s Mot., at 2–3; Pl. 56.1

Stmt. ¶ 15). When asked for his “home address,” Qadri provided an address different

from the Premises—191-11 Foothill Avenue, Hollis, New York 11423—and stated that is

“where I reside, and I get all the mail.” (Id. ¶ 14, Def. 56.1 Stmt. ¶ 14; Qadri Recorded

Statement at 1–2).

However, Qadri also indicated in his recorded statement that he is “never” at the

Foothill Avenue address. (Id. at 2). He has alternatively referred to the Premises as a

“one-family residence,” with a “medical office in that residence.” (Id.; Pl. 56.1 Stmt.

¶ 15; Def. 56.1 Stmt. ¶ 15). He stated that he “live[s] in that house, too” and “use[s] that

house for living also.” (Id. ¶ 55; Qadri Recorded Statement at 2–3; Pl. 56.1 Stmt. ¶ 55).

And “occasionally,” his wife joins him. (Id. ¶ 59; Qadri Recorded Statement at 3; Def.

56.1 Stmt. ¶ 59). Qadri noted that the Premises has three floors—the basement contains

a bedroom and a full bathroom with a shower; the ground (first) floor is the medical

office; and the second floor has two rooms, including a kitchen and storage space for

personal and business purposes. (Id. ¶¶ 46–48, 57, 60; Qadri Recorded Statement at 5;

Pl. 56.1 Stmt. ¶¶ 46–48, 57, 60). The medical office comprises one-third of the

Premises, while the living quarters—which are found in the basement and on the second

floor, and consist of a living area, kitchen, and living room—are two-thirds of the

Premises. (Id. ¶¶ 56, 58; Qadri Recorded Statement at 2–3; Def. 56.1 Stmt. ¶¶ 56, 58).

Sometimes they live in the basement, and other times they stay “on the top.” (Id. ¶ 56;

Qadri Recorded Statement at 3; Pl. 56.1 Stmt. ¶ 56). And when asked how often he stays

in the living quarters, Qadri replied, on “the weekend sometimes” or “[s]ometimes

[during] the week, depend[ing] on the workload. If there’s too much work, I stay there.”

(Id. ¶¶ 18, 59; Def. 56.1 Stmt. ¶¶ 18, 59; Qadri Recorded Statement at 3). Qadri further

averred that he receives personal mail at the Premises. (Decl. of Syed S. Qadri (“Qadri

Decl.”), attached as Ex. 5 to Def.’s Cross-Mot., ¶ 10).

Kaur was employed by WellCare—a health insurance company—not Qadri

directly. (Def. 56.1 Stmt. ¶¶ 19, 49; Qadri Recorded Statement at 7; Pl. 56.1 Stmt. ¶¶ 19,

49). She was at the Premises on the day of the accident to enroll patients in WellCare’s

medical insurance. (Id. ¶¶ 34, 50; Def. 56.1 Stmt. ¶¶ 34, 50). MIC contends that

although Kaur may not have been Qadri’s employee, she was enrolling his patients. (Pl.

56.1 Stmt. ¶¶ 19, 34, 36; Qadri Dep. at 36:22–37:6; Qadri Recorded Statement at 7–8).

In response, Qadri says that Kaur was only enrolling patients for insurance generally—

not exclusively patients belonging to Qadri—and Qadri received no profits from Kaur’s

work. (Id. at 7; Def. 56.1 Stmt. ¶¶ 19, 34, 50). MIC alleges that, nonetheless, Qadri

derived some benefit from her presence and work at the Premises, since it is

uncontested that she was his invitee and was unaware of any other doctors or services

being provided at the Premises. (Id. ¶ 36; Qadri Dep. at 36:22–37:6; Pl. 56.1 Stmt. ¶¶

36, 50).

MIC received notice of Kaur’s claim and lawsuit on November 5, 2020. (Id. ¶ 11;

Def. 56.1 Stmt. ¶ 11). After conducting an investigation, MIC concluded Kaur’s injuries

fell within the Policy’s exclusions to coverage, namely: (a) the injuries arose out of

Qadri’s medical practice, a “business”; (b) they also arose out of Qadri’s rental of the

Premises to Quality Medical; and (c) MIC believed that coverage was inappropriate

because Kaur’s accident took place at Qadri’s medical practice—not at his residence—

and therefore not an insured location. (Id. ¶¶ 21–25; Pl. 56.1 Stmt. ¶¶ 21–25). On

November 25, 2020, MIC disclaimed coverage for Kaur’s injuries. (Id. ¶ 26; Def. 56.1

Stmt. ¶ 26; Disclaimer, attached as Ex. 15 to Pl.’s Mot., at 1).

MIC commenced this action on February 5, 2021, seeking a declaration that (1) it

is not obligated to provide Qadri with coverage under the insurance policy for Kaur’s

claims; and (2) it may withdraw from the defense it is providing Qadri in the Underlying

Action. (Compl. ¶¶ 5–6).

DISCUSSION

“[U]nder New York law, ‘the insurer’s duty to furnish a defense is broader than its

obligation to indemnify.’” Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 620

(2d Cir. 2001) (quoting Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 310 (1984)).

“[S]o long as the claims asserted against the insured may rationally be said to fall within

policy coverage, whatever may later prove to be the limits of the insurer’s responsibility

to pay, there is no doubt that it is obligated to defend.” Id. (emphasis omitted)

(quotations omitted). Said differently, the duty to defend “perdures until it is

determined with certainty that the policy does not provide coverage.” Id. (emphasis in

original). Conversely, “[t]here are, of course, cases in which the policy is so clear that

there is no uncertainty in fact or law, and hence no duty to defend.” Id. And so, “[a]t

the summary judgment stage, a plaintiff [insurer] is entitled to a declaratory judgment

that it has no duty to indemnify if it can prove that there is no material question of fact

as to whether there was coverage.” Allstate Ins. Co. v. Weiner, No. 19-CV-499, 2023 WL

2403625, at *3 (E.D.N.Y. Mar. 8, 2023). That amounts to demonstrating that “there is

no possible factual or legal basis upon which the insurer may eventually be held

obligated to indemnify the insured under any policy provision.” Stein v. N. Assurance

Co. of Am., 617 F. App’x 28, 30 (2d Cir. 2015) (quoting Frontier Insulation Contractors,

Inc. v. Merchs. Mut. Ins. Co., 91 N.Y.2d 169, 175 (1997)).

A. Qadri’s Motion for Summary Judgment

Though labelled as a cross-motion for summary judgment, Qadri’s motion, with

one exception addressed here, merely raises arguments why MIC is not entitled to

summary judgment. (See Def.’s Mem. in Opp’n to Pl.’s Mot. & in Supp. of Cross-Mot.

(“Def.’s Mem.”), attached as Ex. 11 to Def.’s Cross-Mot., at 12–18).

Qadri contends MIC waived its ability to object to coverage because it failed to

investigate an omission he made on the application before the Policy was issued. (Id. at

8–10). In particular, Qadri answered “[n]o” as to whether “any business [was]

conducted on the premises (except permitted incidental occupancies),” and failed to

answer whether there was to be “[a]ny farming or other business conducted on premises

(including day/child care).” (Pl. 56.1 Stmt. ¶ 67; Def. 56.1 Stmt. ¶ 67). His argument has

no merit.

Qadri’s argument, taken to its logical conclusion, would permit an insured to

omit information, and then use that omission as a defense to the insurer’s refusal of

coverage. The waiver principle does not operate in that fashion. An insured can argue

that the insurer waived any ability to deny coverage only if the insurer relies on the

existence of the omission to deny coverage. The cases cited by Qadri himself make this

plain. E.g., Axis Reinsurance Co. v. Bennett, No. 07-CV-7924, 2008 WL 2485388, at

*11 (S.D.N.Y. June 19, 2008) (holding that, where question in insurance application was

not answered and insurer did not inquire further, insurer “waive[d] . . . any objection to

coverage based upon [the] failure to answer”); Phila. Indem. Ins. Co. v. Horowitz,

Greener & Stengel, LLP, 379 F. Supp. 2d 442, 453 (S.D.N.Y. 2005) (“[W]here upon the

face of an insurance application, a question appears to be not answered at all, or to be

imperfectly answered, and the insurers issue a policy without further inquiry, they

waive the want or imperfection in the answer, and render the omission to answer more

fully immaterial.” (emphasis added)).

This is not such a situation. Although MIC initially alleged Qadri’s concealment

or misrepresentation in the application as a basis for denial, (see Compl. ¶¶ 53–62), MIC

has since abandoned the argument on summary judgment. (See Pl.’s Mem. in Opp’n to

Def.’s Cross-Mot. & in Further Supp. of Pl.’s Mot. (“Pl.’s Reply”), Dkt. No. 26 at 10

(“MIC General is no longer pursuing a disclaimer of coverage based upon Qadri’s

omission of information in his application.”)). Furthermore, MIC is not attempting to

rescind the Policy, or void it, due to any representations made during the application

process; it seeks to enforce the Policy and use the exclusions contained within it to deny

coverage.

The remaining arguments in Qadri’s cross-motion are addressed in the context of

MIC’s motion.

B. MIC’s Motion for Summary Judgment

MIC argues it is entitled to summary judgment, for three principal reasons:

coverage is precluded because (1) Kaur’s injuries fall under the Business Exclusion

because they arose from Qadri’s business pursuits in operating his medical practice, (see

Mem. of Law in Supp. of Pl.’s Mot. (“Pl.’s Mem.”), attached as Ex. 17 to Pl.’s Mot., at 14–

18); (2) Kaur’s injuries arose from Qadri’s rental of the Premises to Quality Medical,

which triggers the Rental Exclusion, (id. at 18–19); and (3) Qadri did not reside at the

Premises, so the Premises does not qualify as an “insured location.” (Id. at 19–22). But

there is a genuine dispute of material fact as to whether an exception to the Business

and Rental Exclusions, namely the Office Rental Exception, applies. There are also

issues of material fact as to whether the Premises was an “insured location,” because of

the competing facts about Qadri’s use of the location. As such, MIC is not entitled to

summary judgment.

“The law governing the interpretation of exclusionary clauses in insurance

policies is highly favorable to insureds.” Beazley Ins. Co. v. ACE Am. Ins. Co., 880 F.3d

64, 68 (2d Cir. 2018) (quoting Pioneer Tower Owners Ass’n v. State Farm Fire & Cas.

Co., 12 N.Y.3d 302, 306 (2009)). If an “insurer wishes to exclude certain coverage from

its policy obligations, it must do so in clear and unmistakable language.” Id. at 69

(quotations omitted). As such, policy exclusions are given a “strict and narrow

construction,” id. (quotations omitted), with the burden of proving the exclusion resting

on the insurer. Crescent Beach Club LLC v. Indian Harbor Ins. Co., 468 F. Supp. 3d

515, 541 (E.D.N.Y. 2020).

The first step in determining “whether an insured’s loss falls within a policy

exclusion is to ‘examine whether there is a “reasonable basis for a difference of opinion

as to the meaning of the policy.”’” 7001 E. 71st St., LLC v. Cont’l Cas. Co., 739 F. App’x

37, 38 (2d Cir. 2018) (first quoting U.S. Fid. & Guar. Co. v. Fendi Adele S.R.L., 823 F.3d

146, 150 (2d Cir. 2016); and then quoting Fed. Ins. Co. v. Int’l Bus. Machs. Corp., 18

N.Y.3d 642, 646 (2012)); see also MIC Gen. Ins. Co. v. Allen, 697 F. App’x 717, 718–19

(2d Cir. 2017) (“The policy will be deemed ambiguous and interpreted in favor of the

insured only if, after ‘affording a fair meaning to all of the language employed by the

parties . . . and leaving no provision without force and effect,’ there is a ‘reasonable basis

for a difference of opinion as to the meaning of the policy.’” (quoting Fed. Ins. Co., 18

N.Y.3d at 646)); Crescent Beach Club, 468 F. Supp. 3d at 542 (“Ambiguity in a contract

arises when the contract, read as a whole, fails to disclose its purpose and the parties’

intent or where its terms are subject to more than one reasonable interpretation.”

(quotations omitted)).4 Courts must look to “the language of the disputed . . . provision

itself” and are not “free to disregard the plain meaning of the policy language to find an

ambiguity where none exists.” Covington Specialty Ins. Co. v. Indian Lookout Country

Club, Inc., -- F.4th --, No. 21-2570, 2023 WL 2589389, at *4 (2d Cir. Mar. 22, 2023)

(quotations omitted). “‘[T]he question is not simply whether the insurer could have

phrased the provision differently’ but ‘whether the provision, as written, is sufficiently

clear and precise’ in light of the reasonable expectations of the average policy holder and

the language of the policy as a whole.” Allen, 697 F. App’x at 720 (quoting Fed. Ins. Co.,

18 N.Y.3d at 650). In other words, “to negate coverage by virtue of an exclusion, an

insurer must establish that the exclusion is stated in clear and unmistakable language, is

subject to no other reasonable interpretation, and applies in the particular case and that

its interpretation of the exclusion is the only construction that could fairly be placed

thereon.” Parks Real Est. Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d

33, 42 (2d Cir. 2006) (quotations omitted).

Second, “[o]nce a court concludes that an insurance provision is ambiguous, ‘the

court may accept any available extrinsic evidence to ascertain the meaning intended by

the parties during the formation of the contract.’” Id. at 43 (quoting Morgan Stanley

Grp. Inc. v. New England Ins. Co., 225 F.3d 270, 275–76 (2d Cir. 2000)). “[T]he court

may resolve ambiguity in contractual language as a matter ‘of law’ if the evidence

presented about the parties’ intended meaning is so one-sided that no reasonable

4 This question of ambiguity is one for the Court. “It is well-settled that

interpretation of an insurance agreement is a question of law, as is the question of

whether an insurance provision is clear or ambiguous.” Crescent Beach Club, 468 F.

Supp. 3d at 540 (quotations and citations omitted).

person could decide the contrary.” 3Com Corp. v. Banco do Brasil, S.A., 171 F.3d 739,

746–47 (2d Cir. 1999) (quotations omitted).

If the extrinsic evidence, however, raises disputed issues of material fact,

resolution of the ambiguity at summary judgment is inappropriate, see Union Ins. Soc’y

of Canton, Ltd. v. William Gluckin & Co., 353 F.2d 946, 951 (2d Cir. 1965), and a trial

should be held. See Morgan Stanley Grp., 225 F.3d at 276 (recognizing trial is

appropriate where “extrinsic evidence is available but inconclusive”); e.g., Md. Cas. Co.

v. Cont’l Cas. Co., 332 F.3d 145, 162 (2d Cir. 2003) (“If neither the 1983 Policy as a

whole nor such extrinsic evidence as is proffered makes the parties’ intent clear beyond

rational dispute, trial may be required.”).

Ultimately, “if the extrinsic evidence does not yield a conclusive answer as to the

parties’ intent, a court may apply other rules of contract construction, including the rule

of contra proferentem, which generally provides that where an insurer drafts a policy

any ambiguity in the policy should be resolved in favor of the insured.” Parks Real Est.

Purchasing Grp., 472 F.3d at 43 (quotations omitted) (cleaned up). “This rule is

especially applicable when the ambiguity is found in an exclusionary clause.” McCostis

v. Home Ins. Co. of Ind., 31 F.3d 110, 113 (2d Cir. 1994). But contra proferentem is a

doctrine of last resort to be used only after the consideration of extrinsic evidence. Int’l

Multifoods Corp. v. Com. Union Ins. Co., 309 F.3d 76, 88 n.7 (2d Cir. 2002) (“[W]e

have made clear that under New York law, courts should not resort to [contra

proferentem] until after consideration of extrinsic evidence.”).

Here the dispute centers around the operation of the Office Rental Exception to

the Business and Rental Exclusions to the Policy. To recap, MIC contends that Kaur’s

injuries occurred in connection with Qadri’s operation of a medical practice on the

Premises. As such, one of two policy exclusions preclude coverage: the Policy excludes

coverage for injuries “[a]rising out of ‘business’ pursuits of an ‘insured’” (the Business

Exclusion), “or the rental or holding for rental of any premises by an ‘insured’” (the

Rental Exclusion). (Policy at 59, 70). But, Qadri contends that Kaur’s injuries fall

within the relevant Office Rental Exception to both of these exclusions:

This exclusion does not apply to:

(1) Activities which are usual to non-“business” pursuits; or

(2) The rental or holding for rental of an “insured location”:

. . .

(c) In part, as an office, school, studio, or private garage[.]

(Id. at 70 (emphasis added); Def.’s Mem. at 11–12). In other words, Qadri contends that

though the Policy excludes coverage when the Premises is used as a business or rented

to a third party, there is an exception when the rental is an “office,” such as Qadri’s

medical practice.

MIC argues, however, that this Office Rental Exception does not apply to the

Business Exclusion, and applies only to the Rental Exclusion. (Pl.’s Reply at 6–8). In

other words, the only exception to the Business Exclusion is for “[a]ctivities which are

usual to non-‘business’ pursuits.” (Id.; Policy at 70). And the exception where “[t]he

rental” is “[i]n part, as an office” applies only to the Rental Exclusion (Id.; Pl.’s Reply at

6–8). Thus, under MIC’s reading, if an incident falls within the Business Exclusion, and

is not saved by the “non-business pursuits” language contained within (1)—which it says

is the case with Kaur’s accident—coverage is precluded. The Office Rental Exception

offers no relief.

MIC’s reading—carving up the exception and applying subsection (1) to the

Business Exclusion and subsection (2) to the Rental Exclusion—is not the only

reasonable reading. The Policy is, in fact, ambiguous as to whether it applies in this

fashion.

Though the Court—to assist in understanding the parties’ positions—refers to the

Business and Rental Exclusions as two separate items, the Policy does not. The

exclusion in section (b) is referred to as a unitary, single one—i.e., “[t]his exclusion.”

(Policy at 70). Though it may seem that the distinction—between a singular exclusion

with two components (either of which negates coverage) and two exclusions—is one

without a difference, that is not the case here. Because the Policy refers to a single

exclusion, it would follow that the exception should apply to the entire exclusion, not to

a portion. In other words, the Office Rental Exception, on its own terms, is reasonably

read to apply to this exclusion, not just to the Business Exclusion.

In United Food Service, Inc. v. Fidelity & Casualty Company of New York, a New

York court interpreted an insurance provision that likewise “excluded from personal

liability coverage bodily injury or property damage arising out of business pursuits of an

insured or the rental or holding for rental of any part of any premises by an insured.”

189 A.D.2d 74, 76 (3d Dep’t 1993) (quotations omitted). The policy also provided that

“this exclusion” does not apply to “the rental or holding for rental of an insured location

on an occasional basis if used only as a residence.” Id. After finding that the plaintiff’s

injury arose out of a “business pursuit,” the court then addressed applicability of the

rental exception: “[W]e note that [the insurance company] disclaimed coverage only

under the business pursuits portion of the relevant exclusion and, therefore, the rental

exception does not appear to come into play. In any event, we conclude that the rental

exception is not applicable because Gagnon’s hotel room does not appear to qualify as a

‘residence’ as that term is used in the policy and is commonly understood.” Id. at 77. In

other words, the court addressed two different possibilities: (1) that the rental exception

is irrelevant to the business exclusion (noting it “does not appear to come into play”);

and alternatively (2) the rental exception could apply, but not under the facts presented.

Given that at least one New York court—and an intermediate Appellate Division court,

no less—did not reject the reading advanced by Qadri as unreasonable or implausible,

this Court is unable to do so. Covington Specialty Ins. Co., 2023 WL 2589389, at *4

(“[S]ince the district court was ‘sitting in diversity,’ it was bound to apply the

substantive law of the forum state—here, New York. . . . [T]he district court was bound

to apply the law as interpreted by New York’s intermediate appellate courts unless it

were to find persuasive evidence that the New York Court of Appeals would reach a

different conclusion.” (quotations and citations omitted) (cleaned up)).

In other words, there is some ambiguity whether the Office Rental Exception

applies to the entire exclusion. On the one hand, the Exception can be read to apply,

because the Exclusion is not bifurcated into separate exclusions for which separate

exceptions apply.5 On the other hand, the Exception appears—as a logical and topical

matter—to apply to the Rental Exclusion only (since there is a reason to continue

homeowner’s coverage even if the property is rented in part, if the rental involves a use

typical to home ownership, like use as a home office). Moreover, there appears to be a

separate exception to the Business Exclusion—the exception for “non-business

5 Qadri makes a separate argument why MIC’s reading is implausible (and thus

why his reading is reasonable): if the Office Rental Exception applied only to the Rental

Exclusion, and not to the Business Exclusion, the Exception would be rendered

nugatory. (Def.’s Mem. in Further Supp. of Cross-Mot. (“Def.’s Reply”), Dkt. No. 27 at

4). That is because a home office is almost always, and by definition, used for a business

purpose. And if the intent of the Exception was to allow coverage when someone rented

their home for use as an office, that would be made impossible by the Business

Exclusion—which by not excepting such use—would always preclude coverage.

pursuits”—and the Office Rental Exception is not combined with or referenced in that

exception.

Having determined the language is ambiguous, the Court must turn to whether

extrinsic evidence reveals the parties’ intent at the time MIC issued the Policy. So firm

in its conviction that “[t]here is no such ambiguity,” (Pl.’s Reply at 8), MIC neglected to

provide the Court with any extrinsic evidence to resolve the ambiguity. The Court notes

that MIC’s failure to provide the Court with any extrinsic evidence “may signal an actual

absence of any extrinsic evidence,” or merely MIC’s view “that the contract itself is so

clear that no further aids to its interpretation are necessary. If the former, the policy

must be construed in favor of the insured[.]” Twombly v. AIG Life Ins. Co., 199 F.3d 20,

25 (1st Cir. 1999).

There is some extrinsic evidence, here. But neither party addresses it. The

exception to the exclusion was incorporated into the Policy through an endorsement.6

(See Schedule “F” – Forms, Endorsements and Schedules, Policy at 28 (detailing special

provisions for New York); id. at 70; Disclaimer at 4). Side-by-side comparisons of the

standard exclusion in the original Policy, and the Endorsement, are reproduced below.

6 An endorsement is “[a]n amendment to an insurance policy; a rider.”

Endorsement, Black’s Law Dictionary (11th ed. 2019).

1. Coverage L-Personal Liability and Coverage M-

Medical Payments to Others do not apply to

"bodily injury" or "property damage:"

a. which is expected or intended by the "insured."

b.(1) arising out of or in connection with a 8B. Item b. is deleted and replaced by the following:

"business" engaged in by an “insured.” This b. Arising out of "business" pursuits of an

exclusion applies oe IS mited to an act "insured" or the rental or holding for rental of

or omission, regardless of its nature or cir- any premises by an "insured".

cumstance, involving a service or duty ren-

dered, promised, owed or implied to be This exclusion does not apply to:

provided because of the nature of the (1) Activities which are usual to non-"business"

"business;" pursuits; or

(2) arising out of the rental or holding for rental (2) The rental or holding for rental of an

of any part of any premises by an "insured." "insured location":

This exclusion does not apply to the rental (a) On an occasional basis if used only as a

or holding for rental of an "insured loca- residence;

tion: (b) In part for use only as a residence un-

(a) on an occasional basis if used only as a less a single family unit is intended for

residence; use by the occupying family to lodge

(b) in part for use only as a residence, more than two roomers or boarders; or

unless a single family unit is intended (c) In part, as an office, school, studio, or

for use by the occupying family to lodge private garage;

more than two roomers or boarders; or

(c) in part, as an office, school, studio or

private garage.

(Policy at 59, 70). The original unmodified Policy bifurcated the exclusion and

exception, in a way that MIC contends the Policy with the Endorsement should now be

read. That is, the unmodified Policy provided that there was no exception to the

Business Exclusion for rental of the Premises as an office. Use of the Premises as an

office was an exception only to the exclusion of coverage for operating the Premises as a

rental property.

Though both parties fail to acknowledge the existence or effect of the

Endorsement in their motion papers, this fact could shed light on their intent at the time

20

of contracting.7 Here, not only could the insurer “have phrased the provision

differently,” see supra at 14, it previously did so. The original Policy characterized the

Business and Rental Exclusions as two independent exclusions. Indeed, the only

reasonable construction of the unmodified Policy is that rental of the premises as an

office (subsection 2(c)) is capable only of negating the “Rental Exclusion,” and cannot

save an incident that falls within the “Business Exclusion.” But that structure was

superseded by the Endorsement, and creation of a single exclusion followed by a single

exception. When read together, the Endorsement and Policy—which expressly

eliminate this separation—could suggest the intent to achieve the opposite and permit,

rather than exclude, coverage in Qadri’s favor. Cf. Monteleone v. Crow Constr. Co., 242

A.D.2d 135, 140–41 (1st Dep’t 1998) (“Under the original policy exclusion contained in

(2)(e), it is clear that Kalin’s claim would be covered because it would come within the

exception that is spelled out in the final, unnumbered sentence of that provision.

Having been deprived of that exception [by the endorsement], there is no longer

coverage under the policy. . . . Clearly, the intent and inescapable effect of deleting the

‘insured contract’ exception is to deny coverage for all bodily injury claims, both

common-law and contractual alike; to deprive the provision of this meaning would be to

render it identical to its predecessor version, despite the deletion of the critical

concluding sentence.”).

7 The Court is unable to consider this prior language in determining whether the

language of the Policy is ambiguous. See Covington Specialty Ins. Co., 2023 WL

2589389, at *4 (“This line of precedent squarely forecloses the Insureds’ argument that

the Absolute Auto Exclusion can be rendered ambiguous by reference to the standard

exclusion that it ‘delete[s]’ and ‘replace[s].’”).

There may well be additional extrinsic evidence neither party has identified at

this stage, or there could be none. Either way, in the absence of any briefing on the

availability of extrinsic evidence, or its potential impact on the parties’ reasonable

expectations at the time of contracting, the Court cannot conclusively resolve the

ambiguity in favor of one party or the other. See supra at 14–15; Lantheus Med.

Imaging, Inc. v. Zurich Am. Ins. Co., 650 F. App’x 70, 71 (2d Cir. 2016) (“Where

contractual language is ambiguous and subject to varying reasonable interpretations,

intent becomes an issue of fact and summary judgment is inappropriate. Only where

the language is unambiguous may the district court construe it as a matter of law and

grant summary judgment accordingly.” (quotations omitted)); Union Ins. Soc’y of

Canton, Ltd., 353 F.2d at 952 (“The court is not unaware of the possibility that the

parties may be able to adduce but little additional competent evidence before the fact-

trier on the issue of intent. Nevertheless, sound judicial administration strongly

suggests that a court should not attempt to reconstruct the intent of the parties in a

complicated factual situation before they have had an opportunity to present evidence

on that issue before the fact-trier.”). And, in any event, the Court need not resolve the

ambiguity on summary judgment given there are also disputed issues of material fact as

to whether the Premises qualifies as an “insured location” under the Office Rental

Exception, as discussed below, and the “insured location” question would have to be

resolved in Qadri’s favor to qualify for the Office Rental Exception. The ambiguity must

be resolved at trial, by reference to any available extrinsic evidence. The trial will be an

opportunity for MIC “to shed any further light on [the ambiguity] . . . that it can through

evidence on the preparation of the policy, its structure, discussions that may have

occurred with [Qadri], or any other relevant aspect of the contract formation.”

Twombly, 199 F.3d at 25–26.8

MIC does contend that Qadri does not satisfy the prerequisite for the Office

Rental Exception, which requires that any rental be of an “insured location.” (Pl.’s

Reply at 8–9). And MIC argues that Qadri’s use of the Premises as a medical office, not

a residence, means it was not an insured location. (Pl.’s Mem. at 19–22). If true, not

only would Qadri not qualify for the Office Rental Exception but the Insured Location

Exclusion—providing that the Policy only covers insured locations—would apply, and

preclude coverage. See, e.g., Allen, 697 F. App’x at 720 (“In view of the . . . undisputed

fact that Chambers did not reside at the insured address, MIC has no duty to defend him

in the state court action.”); Marshall v. Tower Ins. Co. of N.Y., 44 A.D.3d 1014, 1015 (2d

Dep’t 2007) (“As the parties do not dispute that the plaintiff, the named insured under

the policy, did not reside at the subject premises, the defendant Tower Insurance

Company of New York properly concluded that the subject premises were not covered

under the policy and properly disclaimed on that basis.”). On this issue, there are

disputed issues of material fact.

Under the Policy, the Premises qualifies as an “insured location” if it is “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.” (Pl. 56.1

8 At trial, MIC would bear the burden of establishing any policy exclusion applied,

and Qadri would bear the burden to demonstrate the applicability of any exception to

the exclusion. Ment Bros. Iron Works Co. v. Interstate Fire & Cas. Co., 702 F.3d 118,

122 (2d Cir. 2012). But the principle of contra proferentem—interpreting any ambiguity

remaining after considering extrinsic evidence against the contract drafter—“applies

regardless of whether, as to a particular clause, the burden of proof falls on the insurer

or the policyholder.” Id. at 124.

Stmt. ¶ 9; Policy at 58; Def. 56.1 Stmt. ¶ 9). The Policy Declarations list the Lefferts

Boulevard address as the “residence premises.” (Id. ¶ 6; Pl. 56.1 Stmt. ¶ 6). And the

Policy defines “you” as the “named insured,” (Policy at 46), namely Qadri. (Def. 56.1

Stmt. ¶ 42; Pl. 56.1 Stmt. ¶ 42). Therefore, the Premises is only an “insured location” if

Qadri resides there. Therein lies the material factual disagreement.

Though conceding that a person can have multiple residences, (Pl.’s Mem. at 21),

MIC contends that Qadri failed to meet his burden in establishing a second residence at

the Premises. The “standard for determining residency for insurance coverage requires

something more than temporary or physical presence and at least some degree of

permanence and intention to remain.” Allstate Ins. Co. v. Rapp, 7 A.D.3d 302, 303 (1st

Dep’t 2004) (quotations omitted); see also Covic v. Allstate Indem. Co., No. 6:16-CV-50,

2017 WL 5054743, at *5 (N.D.N.Y. Sept. 25, 2017) (“[Residency] refers to something

more than temporary or physical presence and requires at least some degree of

permanence and intention to remain, although not necessarily the intent to make that

place a ‘fixed and permanent home,’ i.e., a domicile.” (quotations and citations

omitted)). And there are competing facts in the record that make a resolution of this

issue impossible on summary judgment.

On the one hand, Qadri refers to the Premises as a “one-family residence,”

affirmatively stating he “live[s]” in the Premises, “use[s] [it] for living,” and receives

personal mail there. (Pl. 56.1 Stmt. ¶¶ 15, 55; Qadri Recorded Statement at 2–3; Qadri

Decl. ¶ 10; Def. 56.1 Stmt. ¶¶ 15, 55). His wife occasionally stays with him. (Id. ¶ 59; Pl.

56.1 Stmt. ¶ 59). And together, they stay at the living quarters—in both the basement

and on the top floor—which include a living area, kitchen, bedroom, and full bathroom.

(Id. ¶¶ 46–48, 58, 60; Qadri Recorded Statement at 5; Def. 56.1 Stmt. ¶¶ 46–48, 58, 60).

Indeed, photographs of the living quarters show the living area as furnished and

decorated, and there are appliances and household items in plain view. (See

Photographs, attached as Exs. 1–4 to Qadri Decl.).

On the other hand, there is evidence suggesting Qadri does not reside at the

Premises. For one thing, Qadri has stated that his “home” address—including “where

[he] reside[s]” and “get[s] all the mail”—is 191-11 Foothill Avenue. (Qadri Recorded

Statement at 2; Pl. 56.1 Stmt. ¶ 14; Def. 56.1 Stmt. ¶ 14; see also Qadri Dep. at 35:17–20

(Q: “Did you come to your practice later on in that day?” A: “I was there before it

happened and I went home. I didn’t come back.”)). He says he only stays at the

Premises “on the weekend sometimes” and “sometimes . . . in the week, depend[ing] on

the workload,” (Def. 56.1 Stmt. ¶¶ 18, 59; Pl. 56.1 Stmt. ¶¶ 18, 59), which MIC argues

demonstrates his overnight stays are merely transitory. (Id. ¶ 59). Referring at one

point to the Premises as a “warehouse,” Qadri says he uses the top floor for “storage,”

including for business purposes. (Id. ¶¶ 15, 48; Def. 56.1 Stmt. ¶¶ 15, 48). And he

admits the basement—where the bedroom is located—is only accessible through Quality

Medical, the commercial tenant occupying the Premises pursuant to the Lease. (Id. ¶¶

30–31, 39; Pl. 56.1 Stmt. ¶¶ 30–31, 39).

In essence, each side has identified favorable facts in the record—specifically, in

Qadri’s Recorded Statement—which it believes are most favorable to its position. A

reasonable factfinder could come out either way on the question of whether Qadri

“resided” at the Premises. The tension between these competing and seemingly

contradictory facts, none of which can be credited over the others, can only be resolved

at trial. See, e.g., Yuan v. State Farm Fire & Cas. Co., No. 19-CV-4921, 2022 WL

4647100, at *2 & *4 (E.D.N.Y. Oct. 1, 2022) (denying summary judgment where

plaintiff’s testimony included conflictive narratives about her residence under the

insurance policy because “[w]hether and when [p]laintiff is credible are questions for a

fact finder [at a hearing], not for the Court to resolve at summary judgment”); Craft v.

N.Y. Cent. Mut. Fire Ins. Co., 152 A.D.3d 940, 942 (3d Dep’t 2017) (holding the trial

court erred in granting summary judgment where record presented “some evidence,

which we do not weigh, supporting both sides, and different inferences are permissible

from the evidence as to whether plaintiff resided at the premises” (quotations

omitted)).9

Because the Court cannot rule, as a matter of law, on whether the Premises was

Qadri’s residence, it cannot grant MIC summary judgment on the issue of the

inapplicability of the Office Rental Exception or the applicability of the Insured Location

9 MIC’s authorities suggesting that Qadri must show a higher degree of

permanence to establish residence are inapposite. The question resolved in the cases

cited by MIC was whether the plaintiff resided at the subject premises for purposes of

establishing venue under N.Y. C.P.L.R. 503. See, e.g., Katz v. Siroty, 62 A.D.2d 1011,

1011 (2d Dep’t 1978) (granting defendant’s motion “to change the venue of the action,”

in part because “plaintiff’s testimony on the issue of his claimed (second) residence,”

adduced “[a]t the hearing held pursuant to this court’s remand,” was “evasive and

unconvincing”); Samuel v. Green, 276 A.D.2d 687, 687 (2d Dep’t 2000) (“The evidence

submitted by the plaintiffs was insufficient to establish, for the purpose of venue, that

the plaintiffs had a second residence in Kings County.”); Siegfried v. Siegfried, 92

A.D.2d 916, 916–17 (2d Dep’t 1983) (“In the instant case there was no evidence adduced

at the residency hearing . . . to indicate that prior to the commencement of this action

plaintiff had continuously, or even on a steady basis, remained in Nassau County . . . .

Accordingly, since plaintiff was not a resident of Nassau County, defendant’s motion is

granted to the extent of changing the venue to Westchester County, the county in which

defendant undisputedly resides.”); Hurley v. Union Tr. Co. of Rochester, 244 A.D. 590,

594 (3d Dep’t 1935) (reversing trial court’s order granting “defendant’s motion to

change the place of trial from Albany county to Monroe county”); Labissiere v. Roland,

231 A.D.2d 687, 687 (2d Dep’t 1996) (holding plaintiff’s submissions “will not suffice to

establish residency for purposes of defeating a properly brought motion to change

venue” and directing venue of action to be changed from Kings County to Nassau

County); (Pl.’s Mem. at 21–22; Pl.’s Reply at 9). These cases were neither decided in the

context of an insurance policy nor in the posture of summary judgment.

Exclusion. Likewise, the Court cannot rule for Qadri, as a matter of law, that he is

entitled to summary judgment on his entitlement to the Exception.10

These issues—as well as the threshold issue of how to resolve the ambiguity in the

Policy as to the applicability of the Exception to the Business and Rental Exclusions—

must be resolved at a trial.

CONCLUSION

For the reasons stated above, the Court denies both parties’ motions for summary

judgment. The parties are directed to file a joint pre-trial order consistent with this

Court’s Individual Practices no later than May 30, 2023.

SO ORDERED.

/s/ Sanket J. Bulsara March 28, 2023

SANKET J. BULSARA

United States Magistrate Judge

Brooklyn, New York

10 Qadri’s case law on this point is also inapposite. In Allstate Insurance Co. v.

Rapp, a court held that a child was also a resident of his grandfather’s household

because the living arrangement was reflective of the required degree of permanency, and

would “obviously” continue indefinitely. 7 A.D.3d at 303. In doing so, it reasoned: “The

correct disposition of this case turns, not as petitioner argues, on a credibility

determination reserved exclusively to the hearing court but, rather, on a point of law,

namely, the recognition that respondent could, for insurance purposes, be a resident of

more than one household.” Id. at 304. Here, MIC acknowledges a party can have

multiple residences, but the issue is whether the Premises is such a second residence.