New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on September 14, 2004, representing the position of the New York State Insurance Department.

RE: Anti-Arson Application

Questions Presented:

1) Must the anti-arson application1 be completed by all building owners of covered residential premises under four units?

2) Must the anti-arson application be completed by someone other than the building owner of the premises, such as a tenant?

Conclusions:

1) No. N.Y. Ins. Law § 3403(g) (McKinney 2000) provides that the requirements of N.Y. Ins. Law § 3403(b) (McKinney 2000) do not apply to owner-occupied real property used predominantly for residential purposes which consists of not more than four dwelling units.

2) If N.Y. Ins. Law § 3403 (McKinney 2000) applies, a tenant who insures leasehold improvements that he makes or is the insured on such improvements and contents where he resides, must complete an anti-arson application. However, if the tenant is insured for only the contents, the tenant would not be required to complete an anti-arson application.

Facts:

No facts were provided.

Analysis:

First question

N.Y. Ins. Law § 3403(b) (McKinney 2000) states: "Except as provided in subsection (g) of this section the use of the anti-arson application shall be mandatory for all property insurance policies covering the peril of fire or explosion."

N.Y. Ins. Law § 3403(g)(1) (McKinney 2000) states:

(g)(1) The provisions of this section shall not apply to any insurance policy or contract covering the peril of fire or explosion with respect to owner-occupied real property used predominantly for residential purposes which consists of not more than four dwelling units.

Accordingly, building owners of owner-occupied real property used predominantly for residential purposes which consists of not more than four dwelling units are not required to complete the anti-arson application.

Please note that N.Y. Ins. Law § 3403(g)(2) (McKinney 2000) states:

(2) The provisions of this section shall only apply to cities with a population over four hundred thousand persons according to the nineteen hundred seventy census, except that within a reasonable time after receiving a petition by the governing board of a local municipal corporation as those terms are defined in article one of the general municipal law,2  the superintendent shall mandate the use of the anti-arson application within specific designations contained in such petition.

Thus, the requirements of N.Y. Insurance Law § 3403 (McKinney 2000) only apply to cities with over 400,000 persons or where the exception stated above applies.

Second question

If N.Y. Ins. Law § 3403 (McKinney 2000) applies, a tenant who insures leasehold improvements which he makes or is the insured on such improvements and contents where he resides, must complete an anti-arson application. However, if the tenant is insured for only the contents, the tenant would not be required to complete an anti-arson application. The Office of General Counsel previously opined on N.Y. Ins. Law § 3403 (McKinney 2000) in an April 28, 1983 opinion (see attached) which states in pertinent part:

[Section 3403] does not appear to be limited to those persons with an insurable interest in the real property risk . . . Section [3403(b)] provides that "Except as provided in [Section 3403(g)] the use of the anti-arson application shall be mandatory for all property insurance policies covering the peril of fire or explosion." Section [3403(a)(3)] defines property to mean "real property and the buildings and improvements thereon." (emphasis added) Reading the word "and" in its usual joint and several sense I conclude that if improvements to a building or real property are insured with or independently of the building or real property, the insured must complete an anti-arson application. Insurance of "improvements" is the key. Thus, if a tenant is the insured on leasehold improvements he must complete an anti-arson application . . . As a corrollary, if the insurance is limited to contents alone, Section [3403] and the prescribed application do not appear to be applicable . . . The basis for my conclusion is that the focus of Section [3403] appears to be the nature of the risk insured and not the identity of the insured (e.g. owner or tenant).

For further information you may contact Senior Attorney Robert Freedman at the New York City Office.


1  The anti-arson application is provided in N.Y. Comp. Codes R. & Regs. tit. 11, § 62-4.2 (c) & (d) (1999) Regulation 96).

2  The term "municipal corporation" includes "only a county, town, city and village." N.Y. Gen. Mun. Law § 2 (McKinney 1999).