Opinion
01-03284
February 5, 2002
March 11, 2002.
In an action for a judgment declaring that the defendant State Farm Insurance Company is obligated to defend and indemnify the defendant Joseph Appell in an underlying action entitled Appell v. Mandel, pending in the Supreme Court, Nassau County, under Index No. 021497/1999, the plaintiff appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated March 19, 2001, which granted that branch of the motion of the defendant State Farm Insurance Company which was for summary judgment dismissing the complaint insofar as asserted against it.
Kreines Engelberg, Mineola, N.Y. (Richard A. Engelberg of counsel), for appellants.
Nicolini Paradise, Mineola, N.Y. (John J. Nicolini of counsel), for respondent State Farm Insurance Company.
Kelly, Rode Kelly, LLP, Mineola, N.Y. (George J. Wilson of counsel), for respondent Geraldine Mengel.
MYRIAM J. ALTMAN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, and STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant State Farm Insurance Company is not obligated to defend and indemnify the defendant Joseph Appell in the underlying action.
The insurance policy at issue excludes coverage for "bodily injury to you or any insured within the meaning of part a. or b. of the definition of insured". The term insured is defined as, inter alia, "residents of your household [who are]: a. your relatives; and b. * * * under the age of 21 * * * in the care of a person described above". The term "resident" is not defined in the policy. Courts have held that residency requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain (see, Commercial Mut. Ins. Co. v. Wagschall, 256 A.D.2d 300, 301; Fiore v. Excelsior Ins., 276 A.D.2d 895, 896; Kradjian v. American Mfrs. Mut. Ins. Co., 206 A.D.2d 801, 802; New York Cent. Mut. Fire Ins. Co. v. Kowalski, 195 A.D.2d 940, 941; Canfield v. Peerless Ins. Co., 262 A.D.2d 934, 934-935; Hollander v. Nationwide Mut. Ins. Co., 60 A.D.2d 380, 383). The defendant State Farm Insurance Company (hereinafter State Farm) sustained its burden in the first instance on the motion for summary judgment by establishing that, on the date of the accident, the infant plaintiff was a resident in the household insured by the homeowner's policy issued by it, thereby excluding coverage under the policy for the injuries she sustained (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 560; see also, Matter of Aetna Cas. and Sur. Co. v. Gutstein, 80 N.Y.2d 773, 775). In opposition to the motion, the plaintiff Kerry Appell failed to come forward with admissible evidence sufficient to raise a triable issue of fact with respect to the infant plaintiff's residence (see generally, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853). We reject those statements made by the plaintiff Kerry Appell in her affidavit submitted in opposition to State Farm's motion for summary judgment which conflicted with her deposition testimony, on the ground that they constitute a belated attempt to raise a feigned factual issue designed to avoid the consequences of dismissal (see, Fontana v. Fortunoff, 246 A.D.2d 626, 627; Miller v. City of New York, 214 A.D.2d 657; Garvin v. Rosenberg, 204 A.D.2d 388).
The matter must be remitted to the Supreme Court, Nassau County, however, for the entry of an appropriate judgment declaring that State Farm is not required to defend or indemnify Joseph Appell in the underlying action (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
In light of our determination, we do not reach the plaintiff's remaining argument.