Opinion
December 26, 1991
Appeal from the Supreme Court, Onondaga County, Hayes, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Davis, JJ.
Order unanimously reversed on the law without costs and judgment granted, in accordance with the following Memorandum: On a motion for summary judgment in this declaratory judgment action, defendant Nationwide Insurance Company (Nationwide), submitted affidavits to the court asserting that, at the time of plaintiff's automobile accident, the driver of the second vehicle (McDonald) was not a resident of his mother's and stepfather's household as that term was defined in the automobile liability policy purchased by them from Nationwide (see, Allstate Ins. Co. v Gominiak, 147 A.D.2d 979; see also, D'Amico v Pennsylvania Millers Mut. Ins. Co., 52 N.Y.2d 1000). In opposition to that evidence, plaintiff failed to submit any proof in admissible form raising a triable issue of fact concerning McDonald's residence (see, Ellis v Allstate Ins. Co., 97 A.D.2d 970; see also, Abrahamsen v Brockway Glass Co., 156 A.D.2d 615, 617; Clifford v Black Clawson Co., 145 A.D.2d 808, lv denied 76 N.Y.2d 714). Accordingly, we declare that McDonald was not an insured under the policy and that Nationwide is not required to defend or indemnify him in the personal injury action brought against him by plaintiff arising out of the automobile accident of November 25, 1989.