IN RE: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, appellant, v. Deborah NICOLETTI, respondent-respondent, et al., respondents.

Decided: October 25, 2004

SONDRA MILLER, J.P., DANIEL F. LUCIANO, STEPHEN G. CRANE, and PETER B. SKELOS, JJ. Martin, Fallon & Mulĺe, Huntington, N.Y. (Richard C. Mullé of counsel), for appellant. Faber & Troy, Woodbury, N.Y. (John S. White of counsel), for respondent-respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Cohalan, J.), entered February 24, 2004, which, after a hearing, denied the petition and dismissed the proceeding.

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

 Whether a person is 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” (New York Cent. Mut. Fire Ins. Co. v. Kowalski, 195 A.D.2d 940, 941, 600 N.Y.S.2d 977;  see Matter of Aetna Cas. & Sur. Co. v. Gutstein, 80 N.Y.2d 773, 775, 587 N.Y.S.2d 268, 599 N.E.2d 672;  Lindner v. Wilkerson, 2 A.D.3d 500, 501-502, 769 N.Y.S.2d 551;  Government Empls. Ins. Co. v. Paolicelli, 303 A.D.2d 633, 756 N.Y.S.2d 653;  Matter of New York Cent. Mut. Fire Ins. Co. v. Bonilla, 269 A.D.2d 599, 704 N.Y.S.2d 819;  Matter of Aetna Cas. & Sur. Co. v. Panetta, 202 A.D.2d 662, 609 N.Y.S.2d 631).   The issue of residency is a question of fact to be determined at a hearing (see Government Empls. Ins. Co. v. Paolicelli, supra, citing Hollander v. Nationwide Mut. Ins. Co., 60 A.D.2d 380, 383-384, 401 N.Y.S.2d 336;  Matter of American Natl. Prop. & Cas. Co. v. Chulack, 265 A.D.2d 550, 697 N.Y.S.2d 153).   While the determinations of a hearing court are accorded due deference on appeal and should not be disturbed when supported by a fair interpretation of the evidence (see Government Empls. Ins. Co. v. Paolicelli, supra ), the determination here must be set aside.

 The respondent Deborah Nicoletti (hereinafter Deborah) was involved in a car accident in August 2000, when she was 38 years old. Her father testified that she last lived with him in 1997 and that she was not living with him at the time of the accident.   Deborah testified that she lived in her parents' house “on and off” since 1978, and that during the three years prior to the accident, when she had a serious drug problem, she lived in the houses of various friends and her sister.   She had testified at an examination under oath that at the time of the accident she lived at an address other than her parents' house.   Under the circumstances, no fair interpretation of the evidence supports the Supreme Court's conclusion that Deborah was a “ resident” of her father's household at the time of the accident.   The record is devoid of evidence to demonstrate that Deborah stayed at her parents' house with any degree of permanency with an intention to remain there.   Although Deborah testified that she received mail at her parents' address, had the key to the house, and kept some belongings there, these facts are insufficient to establish her residence at that address (see Matter of Aetna Cas. & Sur. Co. v. Gutstein, supra at 775, 587 N.Y.S.2d 268, 599 N.E.2d 672;  Lindner v. Wilkerson, supra at 502, 769 N.Y.S.2d 551;  Fennell v. New York Cent. Mut. Fire Ins. Co., 305 A.D.2d 452, 453, 759 N.Y.S.2d 533;  Matter of American Nat. Prop. & Cas. Co. v. Chulack, supra at 550-551, 697 N.Y.S.2d 153;  Matter of Aetna Cas. & Sur. Co. v. Panetta, supra ).   Thus, Deborah was not a covered person under the insurance policy issued by the appellant to her father.

Accordingly, the Supreme Court erred in denying the petition for a permanent stay of arbitration of Deborah's claim for underinsured motorist benefits under her father's insurance policy.

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