Matter of Nationwide Ins. Co. v. Smaller

Full title: IN THE MATTER OF NATIONWIDE INSURANCE COMPANY, respondent, v. LISA…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 13, 2000

271 A.D.2d 537 (N.Y. App. Div. 2000)

706 N.Y.S.2d 140

Opinion

Submitted March 3, 2000.

April 13, 2000.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for supplementary uninsured motorist benefits, Lisa Smaller appeals from an order of the Supreme Court, Nassau County (O'Shaughnessy, J.H.O.), dated December 7, 1998, which granted the petition.

David J. Hernandez, Brooklyn, N.Y., for appellant.

DANIEL W. JOY, J.P., WILLIAM C. THOMPSON, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JJ.

DECISION ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The appellant is not a covered person entitled to supplementary uninsured motorist benefits under her former husband's insurance policy. The policy provides such coverage only for the "named insured and, while residents of the same household, [the insured's] spouse and the relatives of either of [the named insured or spouse]". Although the appellant stored some belongings in her then-estranged husband's home, had a key, and would visit to obtain clothing, she was not a resident of the household (see,Matter of Aetna Cas. Sur. Co. v. Gutstein, 80 N.Y.2d 773 ; cf.,Pellegrino v. State Farm Ins., Co., 167 Misc.2d 617 ). The appellant admitted in sworn documents and in a police accident report that she had been living separate and apart from her husband at the time of the accident and that her resident address was not the marital address.

Since the appellant was not a covered person under the subject policy, the petitioner had no statutory obligation to provide her with prompt notification of disclaimer (see, Insurance Law § 3420[d]; Zappone v. Home Ins. Co., 55 N.Y.2d 131 ; Fireman's Fund Ins. Co. v. Freda, 156 A.D.2d 364 ).