Rossi v. Hartford Fire Insurance

— In an action to recover on a fire insurance policy, plaintiff appeals from a judgment of the Supreme Court, Westchester County (Burchell, J.), dated April 27, 1982, which is in favor of defendants, upon a jury verdict. 11 Judgment reversed, on the law, and new trial granted, with costs to abide the event. 11 There was an abundance of evidence from which a jury could find that plaintiff willfully participated in the burning of her dwelling. However, we are constrained to order a new trial based upon a substantial error in the trial court’s charge (see Yandian v Merlis, 34 AD2d 582 , 583). H The court charged that defendants’ affirmative defense of arson must be established by a mere preponderance of the evidence, when the proper charge in an alleged arson case is that the affirmative defense must be established by clear and convincing evidence (see Hutt v Lumbermens Mut. Cas. Co., 95 AD2d 255 ), which is a higher, more demanding standard than the preponderance standard (New York Pattern Jury Instructions, 1 NY PJI 1:64 [1983 Supp]; Simcuski v Saeli, 44 NY2d 442 ; Ross v Food Specialties, 6 NY2d 336 , 341; Santosky v Kramer, 455 US 745 ; see, also, Matter of Storar, 52 NY2d 363 ; Stephenson v Lord, 72 AD2d 857 ). ¶ We have considered the other contentions raised on appeal and find them to be without merit. Thompson, J. P., Weinstein, Rubin and Lawrence, JJ., concur.