ROSSI v. HARTFORD FIRE INSURANCE COMPANY

¶ 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 A.D.2d 582, 583).

¶ 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 A.D.2d 255), which is a higher, more demanding standard than the preponderance standard (New York Pattern Jury Instructions, 1 N.Y. PJI 1:64 [1983 Supp]; Simcuski v Saeli, 44 N.Y.2d 442; Ross v. Food Specialties, 6 N.Y.2d 336, 341; Santosky v. Kramer, 455 U.S. 745; see, also, Matter of Storar, 52 N.Y.2d 363; Stephenson v. Lord, 72 A.D.2d 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.