Opinion
2012-12-28
Gloria SCHENBACK, Jason Rosenthal and Thomas Dombrowski, Plaintiffs–Respondents, v. UNITED FRONTIER MUTUAL INSURANCE COMPANY, Defendant–Appellant. United Frontier Mutual Insurance Company, Interpleader Plaintiff, v. Eric Prutsman, Interpleader Defendant–Respondent.
Barth Sullivan Behr, Buffalo (Laurence D. Behr of Counsel), for Defendant–Appellant. Law Offices of Richard S. Binko, Buffalo (Richard S. Binko of Counsel), for Plaintiffs–Respondents.
Barth Sullivan Behr, Buffalo (Laurence D. Behr of Counsel), for Defendant–Appellant. Law Offices of Richard S. Binko, Buffalo (Richard S. Binko of Counsel), for Plaintiffs–Respondents.
John Richard Streb, Kenmore, for Interpleader Defendant–Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.
MEMORANDUM:
This appeal arises from an action pursuant to Insurance Law § 3420(b) to recover from defendant-interpleader plaintiff, United Frontier Mutual Insurance Company (United), the amount of a default judgment that plaintiffs obtained against interpleader defendant, Eric Prutsman. Prutsman's parents were insured by United and, pursuant to the terms of the policy, Prutsman also would be covered if he resided in his parents' household. United appeals from an order that, inter alia, granted plaintiffs' motion for summary judgment on their complaint, determining that Prutsman is an insured under the United policy and thus that plaintiffs are entitled to recover against United pursuant to Insurance Law § 3420(b).
“A resident is one who lives in the household with a certain degree of permanency and intention to remain” ( Canfield v. Peerless Ins. Co., 262 A.D.2d 934, 934–935, 692 N.Y.S.2d 562,lv. denied94 N.Y.2d 757, 704 N.Y.S.2d 532, 725 N.E.2d 1094;see Matter of State Farm Mut. Auto. Ins. Cos. v. Jackson, 31 A.D.3d 1171, 1171–1172, 818 N.Y.S.2d 882). “The standard for determining residency for purposes of insurance coverage ‘requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain’ ” (Government Empls. Ins. Co. v. Paolicelli, 303 A.D.2d 633, 633, 756 N.Y.S.2d 653;see Canfield, 262 A.D.2d at 934–935, 692 N.Y.S.2d 562). Here, plaintiffs met their initial burden on their motion by establishing that Prutsman's stay in their house was only temporary and that plaintiffs, Prutsman and his parents intended at all times that he return to the parents' house to live ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). In opposition, United failed to raise a triable issue of fact ( see generally Konstantinou v. Phoenix Ins. Co., 74 A.D.3d 1850, 1851, 904 N.Y.S.2d 599,lv. denied15 N.Y.3d 712, 912 N.Y.S.2d 576, 938 N.E.2d 1011;Matter of Prudential Prop. & Cas. Ins. Co. [Galioto], 266 A.D.2d 926, 926, 697 N.Y.S.2d 415).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.