GOVERNMENT EMPLOYEES INSURANCE COMPANY v. PAOLICELLI

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

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. James PAOLICELLI, et al., Respondents, et al., Defendants.

Decided: March 24, 2003

A. GAIL PRUDENTI, P.J., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES and BARRY A. COZIER, JJ. Morris, Duffy, Alonso & Faley, LLP, New York, N.Y. (Andrea M. Alonso and Pauline E. Glaser of counsel), for appellant. Fuchsberg & Fuchsberg, New York, N.Y. (Ronald Yang of counsel), for respondent Doris Sipple.

In an action for a judgment declaring that the plaintiff was not obligated to defend and indemnify the defendant James Paolicelli in an underlying personal injury action entitled Sipple v. Modeste, pending in the Supreme Court, Kings County, under Index No. 7343/96, the plaintiff appeals from an order of the Supreme Court, Kings County (Silverman, J.H.O.), dated June 11, 2001, which, after a hearing, upon finding that the defendant James Paolicelli was a resident of the defendant Anthony Paolicelli's household on April 12, 1995, in effect, determined that the plaintiff was obligated to defend and indemnify the defendant James Paolicelli in the underlying action.   Presiding Justice Prudenti has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c] ).

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the plaintiff is not obligated to defend and indemnify the defendant James Paolicelli in the underlying action.

 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” (New York Cent. Mut. Fire Ins. Co. v. Kowalski, 195 A.D.2d 940, 941, 600 N.Y.S.2d 977;  see Aetna Cas. & Sur. Co. v. Gutstein, 80 N.Y.2d 773, 587 N.Y.S.2d 268, 599 N.E.2d 672;  New York Cent. Mut. Fire Ins. Co. v. Kowalski, 222 A.D.2d 859, 861, 634 N.Y.S.2d 894;  Aetna Cas. & Sur. Co. v. Panetta, 202 A.D.2d 662, 609 N.Y.S.2d 631;  Appleton v. Merchants Mut. Ins. Co., 16 A.D.2d 361, 228 N.Y.S.2d 442).   The issue of residency is a question of fact to be determined at a hearing (see Hollander v. Nationwide Mut. Ins. Co., 60 A.D.2d 380, 383-384, 401 N.Y.S.2d 336;  American Nat'l. 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 (see Greenpoint Sav. Bank v. Patel, 267 A.D.2d 204, 699 N.Y.S.2d 288;  Evering v. Bronx Chrysler Plymouth, 234 A.D.2d 586, 652 N.Y.S.2d 531), and should not be disturbed when supported by a fair interpretation of the evidence (see Wester v. State, 247 A.D.2d 468, 668 N.Y.S.2d 102;  Evering v. Bronx Chrysler Plymouth, supra;  Kaplan v. Werlin, 215 A.D.2d 387, 626 N.Y.S.2d 817), the determination here must be set aside.

 The instant accident occurred in Brooklyn in April 1995.   The defendant James Paolicelli (hereinafter Paolicelli) was driving a vehicle owned by his then-girlfriend (now his wife), who was also a passenger.   Although the hearing court concluded that Paolicelli was a resident of his father's household at the time of the underlying accident, the hearing court reached its determination without stating any findings of fact or conclusions of law.   While Paolicelli's father testified that Paolicelli left his residence in Highland Mills, Orange County, in 1992, and moved in with his girlfriend in Brooklyn, Paolicelli maintained that he was living at both residences on a part-time basis at the time of the accident.   However, our review of the record indicates that Paolicelli's testimony was equivocal with respect to the amount of time that he lived at his father's residence.   In addition, there was no documentary evidence presented to support Paolicelli's claim that he resided with his father at the time of the accident.   Further, the evidence failed to establish that Paolicelli demonstrated an intent to remain in his father's household at the time of the accident.

Accordingly, Paolicelli is not a covered person under the terms of his father's automobile insurance policy (see Aetna Cas. & Sur. Co. v. Gutstein, 80 N.Y.2d 773, 587 N.Y.S.2d 268, 599 N.E.2d 672;  Government Employees Ins. Co. v. Troisi, 249 A.D.2d 363, 671 N.Y.S.2d 111;  Aetna Cas. & Sur. Co. v. Panetta, 202 A.D.2d 662, 609 N.Y.S.2d 631), and the hearing court erred when it, in effect, determined that the plaintiff was obligated to defend and indemnify Paolicelli in the underlying action.

Since this is an action for a declaratory judgment, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that the plaintiff is not obligated to defend and indemnify Paolicelli in the underlying action (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

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