Was The Property An Apartment Or A Condominium?

It mattered in Ment Bros Iron Works Co LLC v Interstate Fire & Casualty Co (2d Circuit, 11 December 2012). Ment Bros, a welding contractor, was working on the construction of a development at 40 Mercer Street in New York and caused a fire. The property-owner's insurer denied coverage on the grounds that the policy excluded liability for property damage 'arising out of the construction of residential properties' – including a 'condominium' but excluding an 'apartment'. The latter term was defined as 'a unit of residential real property in a multi-unit residential building or project where all units are owned by and titled to a single person or entity', the former in similar terms except that '... each unit is separately owned and titled'. The New York district court took the insurer's position: 40 Mercer was a 'residential property' but not an 'apartment', so there was no duty to defend or indemnify the insured.