Allstate Insurance v. Gominiak , 537 N.Y.S.2d 411 ( 1989 )

— Order unanimously reversed on the law without costs and summary judgment granted, in accordance with the following memorandum: Plaintiff Allstate Insurance Company asserts that Special Term erred in denying its summary judgment motion. We agree. On or about July 29, 1985 Allstate issued a homeowner’s insurance policy to Gerald Gominiak covering the premises at 20 Sage Street, Buffalo. The policy defined an insured person to include any relative of Gerald Gominiak, if a resident of his household. On September 9, 1985 Gerald Gominiak’s son, defendant Randall Gominiak, was involved in a shooting incident at a bar, during which defendants Carroll and Kobis were injured.

In this action, Allstate seeks a declaration that Randall Gominiak was not an insured under his father’s homeowner’s policy. At the time of the shooting, Randall was living at 755 Ashland Avenue, Buffalo, and had paid rent for the month of September. He had been living with friends in this apartment since the middle of July 1985 and, immediately prior thereto had lived for one to two weeks at the Hyatt Hotel in downtown Buffalo. Randall had stayed at the Hyatt after his father had asked him to leave the residence at 20 Sage Street in July 1985. His father stated that Randall did not reside at 20 Sage Street on September 9, 1985 and that if Randall had asked to return to Sage Street in September 1985, he would not have granted his request.

Given these circumstances, we declare that Randall was not an insured under the policy and that Allstate need not defend or indemnify him in the personal injury action brought against him by defendants Carroll and Kobis. (Appeal from order of Supreme Court, Erie County, Fudeman, J. — summary judgment.) Present — Callahan, J. P., Doerr, Denman, Balio and Lawton, JJ.