IN RE: State Farm Mutual Automobile Insurance Company (2010)

Submitted-December 11, 2009

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered April 24, 2009, which, after a hearing, denied the petition.

ORDERED that the order is reversed, on the law and the facts, the petition is granted, and the arbitration is permanently stayed.

A person's status as a resident of an insured's household “requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain” (Matter of State Farm Mut. Auto. Ins. Co. v Nicoletti, 11 AD3d 702, 702 [internal quotation marks omitted];  see Lindner v. Wilkerson, 2 AD3d 500, 501-502;  Fennell v New York Cent. Mut. Fire Ins. Co., 305 A.D.2d 452, 453;  Government Empls.   Ins. Co. v. Paolicelli, 303 A.D.2d 633, 633;  Matter of New York Cent. Mut. Fire Ins. Co. v Bonilla, 269 A.D.2d 599;  New York Cent. Mut. Fire Ins. Co. v Kowalski, 195 A.D.2d 940, 941;  see also Matter of Aetna Cas. & Sur. Co. v Gutstein, 80 N.Y.2d 773, 775;  Matter of Aetna Cas. & Sur. Co. v Panetta, 202 A.D.2d 662).   The issue of residency is a question of fact to be determined at a hearing (see Government Empls.   Ins. Co. v Paolicelli, 303 A.D.2d at 633;  Matter of American Natl. Prop. & Cas. Co. v Chulack, 265 A.D.2d 550).   Based on the evidence presented here, we disagree with the hearing court's finding that the respondent resided in the household of the petitioner's named insured, the respondent's mother, at the time of the accident.

At the framed-issue hearing, the respondent testified that she lived most of her life at her parents' residence in Yorktown Heights until she graduated from college in 2005.   Shortly thereafter, in September of that year, she rented an apartment in Manhattan with two other people.   Two months later, the respondent began employment in Manhattan where she worked five days a week, 11 to 12 hours a day.   More than two years later, the respondent, after spending a Sunday afternoon with some friends near her hometown, was struck by a car while crossing Route 9A in Ardsley.

Although the respondent testified at the hearing that she visited her parents at the Yorktown residence at least once a month, “most often more,” and that her parents maintained a room for her there where she kept some of her personal belongings, the respondent was emancipated from her parents, paid rent at the Manhattan residence, filed her own tax returns, and was no longer a dependent on her parents' tax returns.   Evidence that the respondent's driver's license still listed her parents' address as her home address, that she possessed a key to her parents' home and, in 2008, voted in Yorktown Heights, and that she previously opened a bank account at a Chase branch in Yorktown Heights, was insufficient to establish that the respondent was residing at the Yorktown residence of her parents at the time of the accident (see Matter of Aetna Cas. & Sur. Co. v Gutstein, 80 N.Y.2d 773;  Matter of Aetna Cas. & Sur. Co. v Panetta, 202 A.D.2d 662;  D'Amico v Pennsylvania Millers Mut. Ins. Co., 72 A.D.2d 783, affd 52 N.Y.2d 1000;  cf.  Dutkanych v United States Fid. & Guar. Co., 252 A.D.2d 537).   Moreover, physical presence in the parents' home was insufficient to establish residency, particularly where, as here, the respondent had previously established another legal residence in Manhattan and signed a new one-year lease at that residence only two months before the accident (see Hollander v. Nationwide Mut. Ins. Co., 60 A.D.2d 380, 383;  Appleton v. Merchants Mut. Ins. Co., 16 A.D.2d 361;  Allstate Ins. Co. v. Jahrling, 16 A.D.2d 501).

Based on the evidence presented, the respondent was not a covered person under the subject policy and, therefore, the petition to permanently stay the arbitration should have been granted.

The respondent's remaining contentions are without merit.

SKELOS, J.P., DICKERSON, LOTT and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court