Fourth Department – Insurance coverage: Prusik v. Liberty Mutual Insurance Group

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Insurance coverage

Theft – Property maintenance

Prusik v. Liberty Mutual Insurance Group

CA 20-00497

Appealed from Supreme Court, Onondaga County

Background: At issue on appeal is whether removal of items from the plaintiff’s property constitutes a theft under the homeowner’s policy. A stay arising from the plaintiff’s mortgage foreclosure proceeding was issued as he had filed for bankruptcy. Thus, one of the defendants, after securing the property and changing the locks, discontinued the foreclosure action. However, after one month, the defendant instructed a property maintenance company to inspect, secure and maintain the property, which allegedly had been vandalized several times. The maintenance company cleared out the house by removing debris and rubbish, and placed several items into dumpsters. The plaintiff alleged several items of value were removed contrary to the assertions of the maintenance company.

Ruling: The Appellate Division held that the average policyholder of ordinary intelligence would not think that the maintenance company’s employees committed theft by removing items from the plaintiff’s house and placing them in garbage dumpsters on the front lawn. They did not steal or take anything. However, the plaintiff’s submissions on his motion fail to establish as a matter of law that any other person or persons committed theft under the policy.

Cory Schoonmaker, of the Sugarman Law firm, for the defendant-appellant; Andrew J. Ryan, of Woods Oviatt Gilman, for the plaintiff-respondent; Daniel F. Mathews, III, of the Mathews Law Firm, for the defendant-respondent.