Matter of Travelers Home & Marine Ins. Co. v Barowitz 2024 NY Slip Op 30326(U) January 24, 2024 Supreme Court, New York County Docket Number: Index No. 650092/2020 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 650092/2020 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 01/24/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 650092/2020 IN THE MATTER OF THE APPLICATION OF THE TRAVELERS HOME AND MARINE INSURANCE MOTION DATE 01/24/2024 COMPANY S/H/A TRAVELERS INSURANCE COMPANY, MOTION SEQ. NO. 001 004 004 Petitioner,
- V -
FOR AN ORDER STAYING THE SUPPLEMENTARY DECISION + ORDER ON UNDERINSURED MOTORISTS ARBITRATION DEMANDED BY ELLIOTT BAROWITZ and ZACHARY MOTION BARO WITZ,
Respondents. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 18, 19, 20, 21, 22,23,25,26,27,28,29,30,31,32,33,34,35,36,37,38, 63, 64, 70, 71 were read on this motion to/for STAY
The following e-filed documents, listed by NYSCEF document number (Motion 004) 95, 96, 97, 98, 99, 100,101,102,103,104,105,106,107,108,109,110,111,112,114,115 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT
The following e-filed documents, listed by NYSCEF document number (Motion 004) 95, 96, 97, 98, 99, 100,101,102,103,104,105,106,107,108,109,110,111,112,114,115 were read on this motion to/for MISC. SPECIAL PROCEEDINGS
ORDER
Upon the foregoing documents, it is
ORDERED that the motion pursuant to CPLR 4403 of respondent
Elliott Barowitz for an order that rejects that portion of the
report of Special Referee Lance Hewitt, dated October 3, 2023,
("the Report") that determined that "the automobile liability
policy was not in effect on May 22, 2019, the date upon which
Barowitz sustained serious injuries due to being struck by a 650092/2020 IN THE MATTER OF THE vs. FOR AN ORDER STAYING THE Page 1 of 5 Motion No. 001 004 004
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car, he was not a "resident" of Zachary Barowitz's household for
the purpose of uninsured/underinsured motorist coverage" is
GRANTED; and it is further
ORDERED that to the extent that its seeks an order
confirming the report of the Special Referee dated October 3,
2023, that determined that "taking the totality of the evidence
together, [Elliott] Barowitz was a 'resident' of the household
of Zachary Barowitz for the purpose of uninsured/underinsured
motorist coverage under the Maine automobile policy issued to
Zachary Barowitz by petitioner during the term of the policy",
the motion pursuant to CPLR 4403 of respondent Elliott Barowitz
is GRANTED; and it is further
ADJUDGED that the petition to stay the subject arbitration is
denied in all respects, and the proceeding is dismissed, with costs
and disbursements to respondents; and it is further
ADJUDGED that the parties shall proceed to arbitration
forthwith and respondents' counsel shall serve a copy of this
judgment upon the arbitral tribunal; and it is further
ADJUDGED that respondents, having an address at
, do recover from petitioner, having an
address at , costs and disbursements in the
amount of $ as taxed by the Clerk, and that respondent
have execution therefor.
650092/2020 IN THE MATTER OF THE vs. FOR AN ORDER STAYING THE Page 2 of 5 Motion No. 001 004 004
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DECISION
By Order dated September 26, 2022, as directed by the Order
dated September 6, 2022, of the Appellate Division, First
Department, this court referred the matter of "whether
respondent Elliott Barowitz, the insured, is a resident of the
household of Zachary Barowitz for the purposes of
uninsured/underinsured motorist coverage under the subject Maine
automobile liability policy" to a Special Referee for a framed
hearing to Hear and Report.
On May 3, 2023, such evidentiary hearing was held before
Special Referee Lancelot B. Hewitt, who issued the Report on
October 3, 2023.
On motion of respondent Elliott Barowitz, this court
rejects that portion of the findings of fact and conclusion of
such Report that stated "the automobile liability policy was not
in effect on May 22, 2019, the date upon which Barowitz
sustained serious injuries due to being struck by a car, he was
not a "resident" of Zachary Barowitz's household for the purpose
of uninsured/underinsured motorist coverage", as entirely
unsupported by the evidence produced at the hearing, as recorded
and transcribed.
In his Report, Special Referee Hewitt stated, in pertinent
part,
I find that taking the totality of the evidence together, Barowitz was a "resident" of the household of Zachary Barowitz for the purpose of uninsured/underinsured motorist coverage under the Maine automobile liability policy issued to Zachary 650092/2020 IN THE MATTER OF THE vs. FOR AN ORDER STAYING THE Page 3 of 5 Motion No. 001 004 004
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Barowitz by petitioner during the term of the of the policy from June 26, 2017 through June 26, 2018 {see, LaPlante v. Peerlesss Insurance Company, 2017 WL2634640]-[Where the Court determined that whether an individual is a "resident" of a household is "fact specific" and that the "subjective intent" of the party seeking coverage is a primary factor in guiding the court in deciding the issue of residency. The Court also determined that what is also important to this decision is whether in the totality of the circumstances that person maintains a physical presence in the household with the intent to remain for more than a mere transitory period, or that the person has a reasonably recent history of physical presence together with circumstances that manifest intent to return to the residence within a reasonably foreseeable period. Additionally, the Court determined that certain additional factors were important, including [for example] the existence of a second place of lodging; use of the home address on important personal documentation; the individual's receipt of mail at the home; the individual's retention of a bedroom at the home; the individual's storage of personal belongings at the home, the nature of the individual's continuing activity while at the home; and the frequency of the individual's overnight visits to the home]).
While there was ample evidence, most notably the testimony of
respondent Elliott Barowi tz, his spouse and their son Zachary
Barowi tz, to support the finding of the Special Referee that
respondent Elliott Barowitz was a resident of the household of his
son, respondent Zachary Barowitz from June 26, 2017 through June
26, 2018, there is no evidence cited by the Referee for his
conclusion that Elliott Barowitz ceased to be a resident of his
son's household after June 26, 2018. This court has scoured the
transcripts of the proceeding and finds no testimony that supports
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Matter of Travelers Home & Marine Ins. Co. v Barowitz 2024 NY Slip Op 30326(U) January 24, 2024 Supreme Court, New York County Docket Number: Index No. 650092/2020 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 650092/2020 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 01/24/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 650092/2020 IN THE MATTER OF THE APPLICATION OF THE TRAVELERS HOME AND MARINE INSURANCE MOTION DATE 01/24/2024 COMPANY S/H/A TRAVELERS INSURANCE COMPANY, MOTION SEQ. NO. 001 004 004 Petitioner,
- V -
FOR AN ORDER STAYING THE SUPPLEMENTARY DECISION + ORDER ON UNDERINSURED MOTORISTS ARBITRATION DEMANDED BY ELLIOTT BAROWITZ and ZACHARY MOTION BARO WITZ,
Respondents. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 18, 19, 20, 21, 22,23,25,26,27,28,29,30,31,32,33,34,35,36,37,38, 63, 64, 70, 71 were read on this motion to/for STAY
The following e-filed documents, listed by NYSCEF document number (Motion 004) 95, 96, 97, 98, 99, 100,101,102,103,104,105,106,107,108,109,110,111,112,114,115 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT
The following e-filed documents, listed by NYSCEF document number (Motion 004) 95, 96, 97, 98, 99, 100,101,102,103,104,105,106,107,108,109,110,111,112,114,115 were read on this motion to/for MISC. SPECIAL PROCEEDINGS
ORDER
Upon the foregoing documents, it is
ORDERED that the motion pursuant to CPLR 4403 of respondent
Elliott Barowitz for an order that rejects that portion of the
report of Special Referee Lance Hewitt, dated October 3, 2023,
("the Report") that determined that "the automobile liability
policy was not in effect on May 22, 2019, the date upon which
Barowitz sustained serious injuries due to being struck by a 650092/2020 IN THE MATTER OF THE vs. FOR AN ORDER STAYING THE Page 1 of 5 Motion No. 001 004 004
1 of 5 [* 1] INDEX NO. 650092/2020 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 01/24/2024
car, he was not a "resident" of Zachary Barowitz's household for
the purpose of uninsured/underinsured motorist coverage" is
GRANTED; and it is further
ORDERED that to the extent that its seeks an order
confirming the report of the Special Referee dated October 3,
2023, that determined that "taking the totality of the evidence
together, [Elliott] Barowitz was a 'resident' of the household
of Zachary Barowitz for the purpose of uninsured/underinsured
motorist coverage under the Maine automobile policy issued to
Zachary Barowitz by petitioner during the term of the policy",
the motion pursuant to CPLR 4403 of respondent Elliott Barowitz
is GRANTED; and it is further
ADJUDGED that the petition to stay the subject arbitration is
denied in all respects, and the proceeding is dismissed, with costs
and disbursements to respondents; and it is further
ADJUDGED that the parties shall proceed to arbitration
forthwith and respondents' counsel shall serve a copy of this
judgment upon the arbitral tribunal; and it is further
ADJUDGED that respondents, having an address at
, do recover from petitioner, having an
address at , costs and disbursements in the
amount of $ as taxed by the Clerk, and that respondent
have execution therefor.
650092/2020 IN THE MATTER OF THE vs. FOR AN ORDER STAYING THE Page 2 of 5 Motion No. 001 004 004
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DECISION
By Order dated September 26, 2022, as directed by the Order
dated September 6, 2022, of the Appellate Division, First
Department, this court referred the matter of "whether
respondent Elliott Barowitz, the insured, is a resident of the
household of Zachary Barowitz for the purposes of
uninsured/underinsured motorist coverage under the subject Maine
automobile liability policy" to a Special Referee for a framed
hearing to Hear and Report.
On May 3, 2023, such evidentiary hearing was held before
Special Referee Lancelot B. Hewitt, who issued the Report on
October 3, 2023.
On motion of respondent Elliott Barowitz, this court
rejects that portion of the findings of fact and conclusion of
such Report that stated "the automobile liability policy was not
in effect on May 22, 2019, the date upon which Barowitz
sustained serious injuries due to being struck by a car, he was
not a "resident" of Zachary Barowitz's household for the purpose
of uninsured/underinsured motorist coverage", as entirely
unsupported by the evidence produced at the hearing, as recorded
and transcribed.
In his Report, Special Referee Hewitt stated, in pertinent
part,
I find that taking the totality of the evidence together, Barowitz was a "resident" of the household of Zachary Barowitz for the purpose of uninsured/underinsured motorist coverage under the Maine automobile liability policy issued to Zachary 650092/2020 IN THE MATTER OF THE vs. FOR AN ORDER STAYING THE Page 3 of 5 Motion No. 001 004 004
3 of 5 [* 3] INDEX NO. 650092/2020 NYSCEF DOC. NO. 118 RECEIVED NYSCEF: 01/24/2024
Barowitz by petitioner during the term of the of the policy from June 26, 2017 through June 26, 2018 {see, LaPlante v. Peerlesss Insurance Company, 2017 WL2634640]-[Where the Court determined that whether an individual is a "resident" of a household is "fact specific" and that the "subjective intent" of the party seeking coverage is a primary factor in guiding the court in deciding the issue of residency. The Court also determined that what is also important to this decision is whether in the totality of the circumstances that person maintains a physical presence in the household with the intent to remain for more than a mere transitory period, or that the person has a reasonably recent history of physical presence together with circumstances that manifest intent to return to the residence within a reasonably foreseeable period. Additionally, the Court determined that certain additional factors were important, including [for example] the existence of a second place of lodging; use of the home address on important personal documentation; the individual's receipt of mail at the home; the individual's retention of a bedroom at the home; the individual's storage of personal belongings at the home, the nature of the individual's continuing activity while at the home; and the frequency of the individual's overnight visits to the home]).
While there was ample evidence, most notably the testimony of
respondent Elliott Barowi tz, his spouse and their son Zachary
Barowi tz, to support the finding of the Special Referee that
respondent Elliott Barowitz was a resident of the household of his
son, respondent Zachary Barowitz from June 26, 2017 through June
26, 2018, there is no evidence cited by the Referee for his
conclusion that Elliott Barowitz ceased to be a resident of his
son's household after June 26, 2018. This court has scoured the
transcripts of the proceeding and finds no testimony that supports
a finding that, between June 27, 2018, and May 22, 2019, the date
650092/2020 IN THE MATTER OF THE vs. FOR AN ORDER STAYING THE Page 4 of 5 Motion No. 001 004 004
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of the subject accident in which respondent Elliott Barowitz, as
a pedestrian, was struck by a vehicle in New York City, ceased to
reside in his son's household for the purpose of
uninsured/underinsured coverage under the Maine motor vehicle
liability policy. Nor does cross movant petitioner cite any
evidence for the proposition that something changed as of June 27,
2018, whereby respondent Elliott Barowitz was no longer a resident
of the household of his son respondent Zachary Barowitz. On such
basis, to the extent that it determined respondent Elliott Barowitz
ceased to be a resident of his son's household sometime after June
26, 2018, this court rejects the Report. See Poster v Poster, 4
AD3d 145 (1 st Dept 2004).
P-~ fl - } ~ 20240124172823DJAMESF68A6A29F7D544688A9D888D4604430A
1/24/2024 DATE DEBRA A. JAMES, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
650092/2020 IN THE MATTER OF THE vs. FOR AN ORDER STAYING THE Page 5 of 5 Motion No. 001 004 004
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