United States District Court, W.D. New York
RAYMOND A. RODRIGUEZ, Plaintiff,
ALLSTATE INDEMNITY COMPANY, Defendant.
DECISION AND ORDER
WILLIAM M. SKRETNY, District Judge.
Plaintiff Raymond Rodriguez, a citizen of New York, commenced this action against Defendant Allstate Indemnity Company ("Defendant"), a citizen of Illinois, on March 7, 2012, in New York State Supreme Court, Erie County. Defendant removed the case to this Court on April 19, 2012, pursuant to 28 U.S.C. § 1446, on the basis of Diversity Jurisdiction. 28 U.S.C. § 1332. Plaintiff alleges that Defendant breached Plaintiff's homeowner's insurance policy by failing to timely pay for Plaintiff's loss when the insured property was damaged in a fire. (Amended Complaint ¶13, Docket No. 31). Plaintiff demands damages in excess of $250, 000. (Id. at ¶15) Presently before the Court is Defendant's motion for Summary Judgment, filed on August 27, 2014. (Docket No. 70).
This Court has jurisdiction under 28 U.S.C. § 1332, as the parties are citizens of different states and the amount in controversy requirement has been met. (See Docket No. 75). The Court took the motion under advisement without oral argument. For the reasons discussed below, Defendant's motion is GRANTED. Plaintiff's Amended Complaint (Docket No. 31) is DISMISSED.
II. BACKGROUND, 
Plaintiff owns the property at 349 Ingham Avenue, Lackawanna, New York. ("Property") (Def. Stmt. ¶¶2, 4), which was damaged by fire on March 25, 2011. (Def. Stmt. ¶5). The Property consists of a two story building with a bar on the first floor and living quarters on the second floor. (Def. Stmt. ¶6). Plaintiff resided at the Property until 2009, when he moved to his current primary residence on Marilla Street in Buffalo, New York ("Marilla Street"). (Def. Stmt. ¶¶8-10). At the time of the fire, the first floor of the Property was vacant, and a tenant lived on the second floor. (Def. Stmt. ¶¶12, 13).
Through his insurance agent, Aldo Canestrari (Cercone Decl., ¶25), Plaintiff entered into a contract of insurance ("Policy") with Defendant to cover the Property, which he renewed for the period of October 19, 2010 to October 19, 2011. (Def. Stmt. ¶¶1, 2). As a condition of coverage, the Policy required that Plaintiff reside at the Property. (Cercone Decl. Exh. A, Deluxe Policy Form AP909 at pp. 2, 3, 4, 6; found at Docket No. 70-4, beginning on page 50 of 81). The Policy defines the "insured premises" as, inter alia: "residence premises, " which in turn is defined as the "dwelling, other structures and land located at the address stated on the Policy Declarations." (Id. at p.3).
Further, "dwelling" means:
a "one, two, three or four family building structure, identified as the insured property on the Policy Declarations, where you reside and which is principally used as a private residence." (Id. at p.4).
Additionally, the Policy requires Plaintiff to notify Defendant of any change in use of the Property, specifically, to inform Defendant if the Property is no longer his primary residence. (Id.). The policyholder must:
"pay the premium when due and comply with the policy terms and conditions, and inform us of any change in title, use or occupancy of the residence premises." (Id.)
The Policy explicitly defines "us" as Allstate:
"Allstate, " "We, " "Us, " or "Our" - means the company named in the Policy ...