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HARARY v. ALLSTATE INS. CO.

March 11, 1997

ZEHAVA HARARY, Plaintiff, against ALLSTATE INSURANCE COMPANY, Defendant.


The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 This action arises from the defendant's denial of plaintiff's claim under her fire insurance policy for the losses suffered as the result of a fire that occurred in her house on February 22, 1993. Suit was brought under diversity jurisdiction, although a 42 U.S.C. § 1982 claim has also been alleged on the basis of plaintiff's and plaintiff's spouse's ethnicity (Israeli). *fn1" Defendant is an Illinois corporation. New York State law has been applied without objection.

 Plaintiff's complaint alleged seven causes of action. The first three causes of action are based on defendant's denial of the coverage provided under plaintiff's Deluxe Homeowners Policy: (1) property damage and losses consequent to a forced sale of the damaged home; (2) additional living expenses; and (3) loss of use of residence. The fourth cause of action claims consequential damages resulting from plaintiff's sale of the fire-damaged house for a price below its previous market value. The fifth cause of action arises under New York General Business Law § 349 and asserts a claim for punitive damages and legal fees in addition to the economic losses previously alleged. The sixth cause of action alleges, under 42 U.S.C. § 1982, that Allstate "engages in a pattern of denying claims to persons of Middle Eastern and/or Israeli backgrounds without basis or justification." Compl. P 33. The seventh cause of action asserts claims for negligent and/or intentional infliction of emotional distress in connection with defendant's insistence that plaintiff remain in the United States to participate in the claims evaluation process during a period in which plaintiff's mother was dying in Israel.

 On October 6, 1995, defendant's motion to dismiss was granted with respect to plaintiff's fourth cause of action, her claim for consequential damages under the contract, on the authority of Harriman v. Norfolk & Dedham Mutual Fire Ins. Co., 172 A.D.2d 585, 586, 568 N.Y.S.2d 820 (N.Y. App. Div. 2d Dept. 1991) (holding that consequential damages beyond the limits of an insurance policy are generally not recoverable in actions on insurance policies because they are too speculative). See Oral Argument 10/6/95 Tr. at 2-4. Defendant's motion to dismiss the fifth, sixth and seventh causes of action, (the claims under N.Y. Gen. Bus. L. § 349, 42 U.S.C. § 1982, and for intentional/negligent infliction of emotional distress), was denied at the same time, although discovery with regard to these causes of action was stayed. See id. at 10-14. Subsequently, discovery proceeded on plaintiff's first, second and third causes of action, which were based on coverage under her homeowner's policy.

 Defendant has moved for summary judgment on two of its thirteen affirmative defenses: failure to cooperate and intentional concealment. Specifically, defendant first asserts that "by failing to provide [Allstate] with her 1991 and 1992 tax returns, and by repeatedly failing to provide [Allstate] with information regarding how much money she had earned in 1991 and 1992, [Harary] has breached the terms and conditions of the cooperation clause of the insurance policy." *fn2" Markowitz Aff. P 6, attached to Def.'s Mot. for Summ. J. ("Def.'s Mot."). Second, Allstate asserts that it is also entitled to summary judgment because "by intentionally refusing to provide [Allstate] with information regarding how much money she earned in 1991 and 1992, plaintiff has violated the concealment or fraud provisions of [her] policy, thereby voiding [her] policy of insurance." *fn3" Id. Plaintiff replied and cross-moved for dismissal of defendant's nine affirmative defenses and for summary judgment.

 Background

 The following discussion, as required on a motion for summary judgment, views the evidence and all reasonable inferences in the light most favorable to the non-movant which, for purposes of defendant's summary judgment motion, is the plaintiff.

 1. Plaintiff's and her Husband's Financial Circumstances Prior to the Fire

 Plaintiff purchased the house in 1981 with her first husband and became its sole owner after their divorce. See Harary Aff. P 3 attached to Pltf.'s Cross-Mot. for Summ. J. ("Harary Aff."); Refinancing Appl. dated October 18, 1991, Ex. X, Def.'s Mot. *fn4" In 1991, Harary sought to refinance her house and did so in 1992. It was appraised at that time, although she was unable to remember the appraised value. See Deposition Tr. of Zehava Harary ("Harary Dep.") at 46-47, Ex. D, Def.'s Mot.

 Defendant has submitted records of Harary's refinancing application and other dealings with her mortgage company, Prudential Home Mortgage, that it obtained from that company. See "Kadilac Mortgage Bankers Ltd. Residential Loan Application," Ex. X, Def.'s Mot. The two 1991 applications for refinancing were signed by plaintiff and (in addition to simple refinancing) included an application for an increase of $ 67,500 in plaintiff's total indebtedness, from $ 147,500 to $ 215,000. This request was apparently granted because the Prudential mortgage was approximately $ 215,000. See Allstate Claim Narrative at 14, Ex. B, Pltf.'s Mot. On the application forms, Harary's monthly income was listed as $ 10,800, the value of the house was $ 550,000 and the value of the business owned by Harary was $ 1,500,000. See Ex. X, Def.'s Mot. Plaintiff has not represented that these forms accurately depict her income and assets nor has she represented that she was unaware of the contents of the two applications, both of which she signed in application for a mortgage whose proceeds she does not dispute receiving. *fn5"

 During the summer of 1992, Harary attempted to sell the house. See Harary Dep. at 43-51, Ex. D, Def.'s Mot. Harary reported having dealt with realtor Jon Sobel and his agent, Jackie Cohen, beginning in April 1992. The house was initially listed with an asking price of $ 600,000; however, it was rented in August 1992. Sobel recalled that Harary was willing to sell for $ 450,000, a figure he viewed as still too high. He thought it would sell for between $ 350,000 and $ 400,000. See Deposition Tr. of Jon Sobel at 10-12, Ex. E, Def.'s Mot. Harary avers that she "turned down at least three offers in the range of $ 350,000 because I felt the house was worth more than that." Harary Aff. P 5.

 Plaintiff's policy with Allstate was called a "Deluxe Homeowners Policy" with a $ 270,000 limit on liability. Id. P 16. The policy submitted by Allstate includes a $ 280,000 limit of liability for "Dwelling Protection." See Allstate Declaration and Policy, Ex. 1, Gus Lambrianides Aff., Ex. AA, Def.'s Mot. Plaintiff claims, and defendant does not dispute, that the insurance limit was an underestimate of the value of the house. Defendant's investigators estimated the market value of the dwelling as $ 425,000 and its replacement cost as $ 375,000. See Allstate Claim Diary at 6, Ex. B, Pltf.'s Mot.

 In August 1992, plaintiff rented the first and second floors of her house as well as part of the basement to Mr. and Mrs. Rudle, a Russian couple, for $ 1,800 per month, through Sobel's agency. Prior to this rental, plaintiff, her children, and Ben-David lived in the entire house. Harary explained the rental resulted from a phone call from Jackie Cohen: "She said, you know 'Zehava, you know, if we can't sell or it can't happen, you can't wait, maybe we can rent. I have a very nice couple.'" Harary Dep. at 53, Ex. D, Def.'s Mot. The Rudles paid two months' rent as security. See id. Simon Rudle stated that Harary told him: "She cannot afford the house and everything." Deposition Tr. Simon Rudle ("S. Rudle Dep.") at 46, Ex. F, Def.'s Mot. Plaintiff stated at her deposition that she rented the house because: "I wanted to come and go freely to Israel." Harary Dep. at 41, Ex. D, Def.'s Mot. Her mother, who lived in Israel, was ill in this period and subsequently died. See id. at 43. Simon Rudle also testified: "I remember very bad she wanted to move to Israel because relative, mother was ill." S. Rudle Dep. at 47, Ex. F, Def.'s Mot. Upon renting the house plaintiff and her husband moved into "one big room" in the basement, storing "a lot of clothes and personal things . . . in the attic." Harary Dep. at 54-55, Ex. D, Def.'s Mot. The children no longer lived in the house. See S. Rudle Dep. at 46, Ex. F, Def.'s Mot. The door between the Rudles's portion of the house and that occupied by plaintiff and Ben-David had no lock, and the Rudles stated that plaintiff and Ben-David repeatedly entered their apartment despite being asked not to. See Deposition Tr. L. Rudle, page number missing, Ex. J, Def.'s Mot. Harary noted that they used the attic for storage. See Harary Dep. at 55, Ex. D, Def.'s Mot.

 2. The Fire

 Plaintiff states that she and her husband had planned to go to Atlantic City on the night of the fire but canceled the plan because of snow. See Harary Aff. P 5. Instead, plaintiff went to play cards at the home of a friend about 7:30 p.m. See id. Ben-David stated that he was aware that the tenants had gone abroad at least a week before the fire, and that he had "supervised" the house in their absence. See Deposition Tr. Shlomo Ben-David ("Ben-David Dep.") at 44-45, Ex. I, Def.'s Mot. Ben-David testified that he watched television that night and called to see if there was work available for him; he was a limousine driver. See Ben-David Dep. at 54, Ex. L, Def.'s Mot.

 As noted, when the fire occurred the tenants (the Rudles) were abroad so that only Ben-David was present. See Ben-David Dep. at 44-45, 58, Ex. I, Def.'s Mot. When the Rudles returned from Switzerland, they found that a number of items had been stolen from their apartment, including a new 36" television that Mr. Rudle (a world class medal-winning weight lifter in Russia) estimated would require three to four people to lift, two large, heavy bronze vases, a marble table, and two heavy chairs. See Deposition Tr. L. Rudle at 51, Ex. K, Def.'s Mot.; S. Rudle Dep. at 66-67, Ex. H, Def.'s Mot. The Rudles did not file a report with the police or a claim with their insurance company for these items. See S. Rudle Dep. at 66-67, Ex. H, Def.'s Mot. Mr. Rudle questioned the feasibility of moving these pieces of furniture during the five minute period that Ben-David reported hearing noises above him or at any time without waking Ben-David. Mr. Rudle observed that the entryway was difficult for moving furniture: "Door is terrible because it got the steps and not convenient steps. Very narrow." S. Rudle Dep. at 51, Ex. K, Def.'s Mot. He also stated:

 
I don't understand was the fire if he sleep downstairs. You ask the weight of the TV. I weight lifter. I was Olympic gym in Russia, eight years national champion, silver, bronze and gold medal. It's impossible. Two men cannot lift this TV without something -- you know -- like the belts, special belts. It's terrible. I don't know how he sleep.

 Id. at 51-52.

 The New York City Fire Department Bureau of Fire Investigation filed a report on the fire listing the cause of the fire as "INCENDIARY." The report stated, in a section titled "Origin and Extension":

 
Examination showed that the fire originated in the [hallway closet], on the second floor, in the East hallway closet, in combustible material: TOWELS/LINENS. The fire extended to center hallway walls, ceiling, and West closet area. The fire further extended vertically, via open flame, to the floor, walls, ceiling and contents of attic area.

 City of New York Fire Department, "Fire and Incident Report," Ex. C, Def.'s Mot. Plaintiff claims, without submitting either a supporting affidavit or deposition testimony: "Following the fire, plaintiff was advised by a member of the New York City Fire Department that the fire was apparently set by a burglar." Pltf. 3(g) Statement P 8. Presumably this refers to the items stolen from the Rudles and the noises ...


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